A federal judge from the District of Connecticut has delivered a legal victory to the World Wrestling Entertainment Inc. (WWE), a Connecticut entertainment company that produces televised wrestling programming, which was sued by six former wrestlers for negligence and fraud in connection with the concussions they suffered during their wrestling careers and the debilitating effects of those concussions that they experience to this day.
Specifically, the court granted, in part, the WWE’s motion to dismiss the claims, except for a fraudulent omission claim brought by two wrestlers, who retired in 2013.
Two of the factors at play in the decision were when the wrestlers retired and the “inherent risks of professional wrestling.”
The plaintiffs alleged, in their complaint, 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. Further, they claimed 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.” The plaintiffs also claimed that the 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.” They further alleged that they “relied on such fraudulent statements or omissions to their detriment in making decisions regarding their health.”
The WWE countered that all the claims, except that of Evan Singleton and Vito LoGrasso, should be dismissed “because they are all time-barred by the applicable Connecticut statutes of limitations and repose, Conn. Gen. Stat. § 52-584 and § 52-577.” It also argued that the plaintiffs’ negligence-based claims must be dismissed “because WWE owed no duty of care to protect the plaintiffs from injuries resulting from the inherent risks of professional wrestling and within the normal expectations of professional wrestlers.” Finally, the WWE claimed that the plaintiffs’ fraud claims, negligent misrepresentation claims and deceit claims must be dismissed “either because they fail to comply with the heightened pleading requirements of Rule 9(b) or because they fail to state a cognizable cause of action under Connecticut law.”
Drawing a Parallel with Smoking
In considering the arguments, the court drew a parallel with smoking.
“The distinction between cause and condition is critical,” the court wrote. “An individual who smokes cannot be said to be aware of developing lung cancer merely because the individual is aware that he or she smokes. And where, as here, the injury alleged is not an actual condition at all, but rather an increased risk of developing a condition, the date of discovery of ‘some injury’ becomes even more difficult to pinpoint. In such cases, it is perhaps possible for a plaintiff to be aware of some form of the risk so as to have discovered the actionable harm. Certainly the widespread publicity of the hazards of smoking in recent decades can be said to have put the American public on notice of an increased risk for lung cancer.
“Here, however, it cannot be determined from the face of the complaints and as a matter of law that the pre-2012 plaintiffs (those who retired in 2012 or earlier) were on notice of an increased risk for a latent, permanent neurological condition merely because they knew they had suffered a concussion and/or sustained other minor brain trauma during the time they wrestled for WWE. The pre-2012 plaintiffs’ knowledge, or lack thereof, of a connection repeated concussions or sub-concussive blows to the head and latent, permanent neurological conditions presents a material issue of fact that must be decided at a later date. Without knowledge of such a connection, the plaintiffs may have discovered ‘some injury,’ but not ‘actionable harm’ because of their inability to tie head trauma that they knew they were sustaining to another party’s breach of a duty to disclose increased risks for latent, permanent neurological conditions.
“The court notes that the WWE has not argued in the instant motions to dismiss that the pre-2012 plaintiffs should have reasonably become aware of their causes of action on the basis of widely-publicized studies, lawsuits and settlements linking CTE and other disorders with professional athletes in other sports in recent years. The court is skeptical, however, of the inherent contradiction, which underlies the plaintiffs’ fraud claims. The 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 the 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.”
The court continued, noting that “further factual development is needed to determine whether any of the pre-2012 plaintiffs discovered, or should have discovered actionable harm in the form of an increased risk for latent, permanent degenerative neurological conditions prior to 2013.”
The court was even more receptive to the WWE regarding other aspects of the motion to dismiss.
The WWE successfully argued that “under the contact sports exception it could only be held liable for reckless and intentional conduct, and not ordinary negligence. The 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. See Kent v. Pan Am. Ballroom, No. F038650, 2002 Cal. App. Unpub. LEXIS 11468, 2002 WL 31776394 (Cal. Ct. App. Dec. 10, 2002) (‘wrestling, and particularly professional wrestling, entails inherent risks of injury. It is a sport where two persons grab, twist, throw or otherwise exert forces and holds upon each other’s heads, necks, arms, legs, feet and torsos with the object of forcing the opponent to the mat.’); Walcott v. Lindenhurst Union Free School Dist., 243 A.D.2d 558, 662 N.Y.S.2d 931, 121 Ed. Law Rep. 832 (2d Dep’t 1997) (high school wrestler assumed the risk of injury resulting from ‘takedown maneuver’ by opponent as such a risk is inherent in wrestling). 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. See, e.g., Foronda ex rel. Estate of Foronda v. Hawaii Intern. Boxing Club, 96 Haw. 51, 25 P.3d 826 (Ct. App. 2001) (risk of boxer falling through the ropes of a boxing ring is an inherent risk of the sport assumed by any boxer). As such, their claims are well within the type of claims for which Jaworski provides an exception to the general duty of care.”
The court also examined the plaintiffs’ allegation that the WWE “was negligent in failing to train and educate its wrestlers about concussions and failed to encourage an environment in which its wrestlers could seek appropriate treatment. These are precisely the same allegations, however, that a court in the Northern District of California recently rejected in a concussion case brought by seven youth soccer players. The soccer players alleged that various soccer leagues, clubs and associations had negligently failed to ‘to educate players and their parents concerning symptoms that may indicate a concussion has occurred,’ among other allegations. Mehr v. Fed’n Int’l de Football Ass’n, 115 F. Supp. 3d 1035, 2015 WL 4366044 (N.D. Cal. 2015). In dismissing the negligence claim, the court held that, the soccer plaintiffs ‘alleged no basis for imputing to any defendant a legal duty to reduce the reduce the risks inherent’ in the sport of soccer.”
The court continued, noting that it “is similarly convinced that the plaintiffs here have failed to allege specific facts — as opposed to vague and conclusory accusations — that WWE acted recklessly or intentionally under Jaworski with respect to the risks that are inherent in compensated professional stunt wrestling. As such, the plaintiffs’ negligence claims fail to state a claim under Connecticut law” and are dismissed.
The lone victory for the plaintiffs involved Singleton and LoGrasso and whether the WWE may be held liable “as a matter of law for non-disclosure of known facts about permanent degenerative neurological conditions that may result from repeated concussions or sub-concussive impacts.” This “is an issue that must be determined at a later stage in this case.”
Russ McCullough, a/k/a “Big Russ McCullough” et al. v. World Wrestling Entertainment, INC., et al.; D. Conn.; CIVIL ACTION NO. 3:15-cv-001074 (VLB) Lead Case, CIVIL ACTION NO. 3:15-cv-00425 (VLB) Consolidated Case, CIVIL ACTION NO. 3:15-cv-01156 (VLB) Consolidated Case, 2016 U.S. Dist. LEXIS 39791; 3/21/16
