Days After 60 WWE Wrestlers Claims Tossed: Two NCAA Players Win in Federal Court With Nearly Identical Claims

On October 1, 2018, a Federal Judge in Illinois ruled in favor of two former college football players with nearly identical allegations to those dismissed by the wrestlers just days before.  The Illinois federal court ruled in favor of two players who have pled at this stage, seemingly weaker claims than the WWE wrestlers. In stark and striking contrast, a Connecticut Judge tossed the wrestlers claims and harshly blamed the advocate for the brain damaged wrestlers for filing frivolous lawsuits brought on nearly identical factual and legal grounds/theories to the successful NCAA players claims.

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Read Marty’s Plea to the Court of his situation made in an Affidavit a year before his case was Broomed

What duty does WWE have to help former wrestlers? The recently dismissed, soon to be appealed lawsuit, argued that WWE actually has legal duties to the injured wrestlers who brought the case. Just as if say, an NFL football player was injured and had long term occupational injuries to their body, the player would, at a minimum would be covered by Workers Comp Laws for their life long injuries. Not so WWE wrestlers. They get: NOTHING, Zero, Zilch. Hence the need to go to the courts to correct this problematic situation.

The WWE according to the lawsuit misclassified it’s wrestlers with unconscionable, unenforceable, boilerplate contracts (you know the kind of one-sided contracts “that aren’t worth the paper they’re printed on”- that’s the kind of contract the wrestlers say WWE uses). The wrestlers argued that these kinds of one-sided contracts violated things called labor laws which are designed to protect people like Marty Jannetty who sustain injuries when they work for a company (particularly injuries with long-term consequences, you know like when you snap your ankle in Madison Square Garden or who you know, just might develop CTE or health issues of that nature and whatnot from numerous untreated concussions).

The Court Ruling doesn’t due much Justice to these claims and even singles out Marty’s ankle injuries as follows: “In addition to these irrelevant allegations  are numerous others, including a list of physical injuries that have nothing to do with concussions or head trauma, incurred by several Plaintiffs in the ring. [See SAC Paragraph 37 alleging that “Plaintiff Jon Heidenreich sustained serious shoulder injuries requiring multiple surgeries” and that ; Plaintiff Marty Jannetty sustained a severe broken ankle”]

The astute reader will also note the addiction issues raised in Marty’s affidavit and how those relate to untreated occupational injuries (including head injuries). An earlier post discussed how addiction issues have been studied by researchers in Public Health who shockingly related that the origin of addiction issues can be from untreated workplace injuries!!  (Anyone reading believe that their could be Any long term injury issues to be studied, identified or treated by WWE as amongst the ranks of professional wrestlers????)

The lawsuits were brought because of WWE’s Continuing Refusal into 2018 to Admit Wrestlers are at Risk for CTE. The WWE Denies and Now the Court Dismissed the claims. The WWE’s lawyer even called for Mr. Kyros to be Disbarred. Decide for yourself, read on.

Jimmy Superfly Snuka, the world learned in November 2017 was diagnosed with Chronic Traumatic Encephalopathy (CTE) as part of his Estates legal claims against the WWE for failing to protect, treat and help him and other wrestlers suffering from the disease. The donation and CTE study were coordinated by Konstantine Kyros after Jimmy died during the pendency of his lawsuit seeking to get help from the WWE.

The effect of the CTE diagnosis (and that of several others such as Rex King and Mr. Fuji) was not what one would have expected. Instead of the WWE realizing that there was just maybe something to all these wrestlers suing them for help, they simply ignored it. It was as if the diagnosis didn’t happen at all. There were no calls for increased research into wrestlers brain tissue, no donation drives, no calls for outreach to wrestlers with CTE symptoms, no alteration in tone and frequency of the legal attacks on the lawyers bringing the claims for the CTE-riddled wrestlers. It was as if the world’s most famous athlete diagnosed with CTE, Jimmy Superfly Snuka didn’t exist.

Ironically in the months before his death, the state of his brain was of intense interest for more media driven rather than public health reasons.

The debate over Mr. Snuka’s brain in his murder hearings, mirrors that of two competing views of reality in the WWE lawsuits:

A) The position of the Plaintiffs and their lawyers:
CTE is a known occupational disease that is a risk of wrestling which has resulted in a health crisis that requires immediate urgent WWE action in terms of study, medical treatment and compensation.

B) Or what is essentially WWE’s position:
Wrestling a relatively safe activity with an unquantified CTE risk. Wrestling has among its goals not to injure anyone and at present it is not worth a WWE funded, dedicated study of wrestlers brains for CTE. No WWE outreach, warnings, medical treatment are required for former wrestlers.

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Shortly before Jimmy’s, death, an expert, a certain John O’Brien testifying to support the prosecutions case to put Superfly on trial for a 1986 murder made the following observations before the presiding Judge: Mr. O’Brien, who examined Snuka in February (2016) and reviewed doctors’ reports on the wrestler, said there is no documented evidence that Snuka sustained even one concussion during his 40-year career in the ring.

But wait there’s more unusual insight from Dr. O’Brien:

The psychiatrist said the assertion that Snuka had suffered numerous concussions during his career came from the wrestler and his wife, not any doctor. O’Brien said he didn’t believe Snuka was ever at risk for serious head injury, despite his high-flying acrobatics in the ring. “It’s theater wrestling. It’s like stage fighting,” O’Brien said. “It’s not the same kind of injury you’d expect to see with heavyweight boxing or professional football.”

(Evocative of Triple H’s 2013 Statements at WWE ‘Donate’ $1.2 Million Dollars to the Nowinski NOT TO STUDY WRESTLERS BRAINS Press Conference? Levesque said pro wrestling is fundamentally different from football when it comes to hard impacts. “If you’re in the NFL, your goal is to try to hit the other guy as hard as possible. … The goal in what we do is the exact opposite,” said Levesque.)

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LEGAL THEORY of WWE’s LIABILITY:
Yesterday the court ruled against the Snuka family despite his confirmed CTE, Alzheimer’s diagnosis and his long-term ongoing relationship with WWE as one of their greatest stars.

Read Carole Snuka’s Personal Affidavit filed in the Laurinaitis case Tragically IGNORED by the Judge HERE.

The tragic Court ruling reads in part: “The affidavit does not support that Mr. Snuka suffered any head injuries or risked incurring such injuries later than 1996. … And Mr. Snuka has not alleged that any of his alleged injuries were incurred during WWE appearances post-dating 1996…. wrongful death actions are barred… survival actions are barred because the statutes of limitation or repose for each deceased Plaintiff’s other claims have elapsed.”

The court seems to have ruled essentially that in order to bring a claim for CTE- the underlying head injuries that cause CTE would have needed to occur within five years of the date he died. As will be easily demonstrated below this makes no sense.  The problem with this analysis in our view is that it ignores what CTE is:

1) A latent progressive degenerative disease found in athletes with a history of head injuries.
2) CTE is not linked to a single identified blow to the head, but rather from the accumulation of repeated sub-concussive blows.
3) Symptoms of CTE may not occur for many years after the blows to the head occurred.

So in essence the Snuka CTE claim could be said to arise from his exposure to head injuries in WWE, and so a Jury would need to decide what event or events would determine what started the clock ticking on whether his estate could bring a claim under the deadlines imposed by Connecticut Law. The Judge seems to have adopted, on what factual or medical basis is unknown as she does not say directly, an injury-in-fact type event which began this hypothetical clock ticking.

Under the science of CTE progression, the Judge’s ruling would seem to foreclose most legal claims for neurological occupational disease type injuries. For example Asbestos or chemical exposure claims for example could be barred if a worker was exposed 20 years before he or she developed mesothelioma cancer or a rare leukemia. The majority of courts looking at these problems have decided to allow experts and Juries to make this determination absent some clear case law. Connecticut appears to impose a fact type analysis on what constitutes the appropriate date to start the clock. When Snuka retired from wrestling and began to experience symptoms, say 10 years after retirement, perhaps the WWE could argue that that was the appropriate date for the clock to start. Plaintiffs contended that Tau protein being released are continuous present physical injuries that could be used to decide a trigger date. In any event these facts, we argue are medical-legal questions prematurely decided.

Seemingly some ‘experts’ were fighting out in the year before Mr. Snuka died whether he had anything wrong with his brain (as above), but below is the proof —as had been alleged in the tossed lawsuit that he had neurological diseases including CTE. As such this would seem to be a possible trigger date for the statute to start running- and not as the Judge ruled the year 1996. In any event the the claim is not frivolous and by way of example: NFL players who were diagnosed with CTE in the NFL lawsuit that sustained accumulated head injuries many years before (decades in some cases) they were diagnosed with CTE were eligible for awards of upto $4,000,000 dollars.

Conclusion: The Court and WWE don’t GET it.

“Further, in order to protect the public, Attorney Kyros is ordered to send by receipted mail delivery a copy of this ruling to his appearing co-counsel and to each of the Laurinaitis plaintiffs….”

This needs no comment. You can see Court documents here:

The Lawsuit Filed by the Wrestlers is Here.

The Judge’s Ruling is Found Here.

Three other related  Court Documents Can Be seen Here:

A) Response to a Show Cause Order Filed by Mr. Kyros Team On Procedural History (Hint: it points to some issues in Judge’s Ruling on Basic Facts: ie Billy Jack Haynes Filed the First Case.)

B) Wrestlers Legal Team Response to WWE First Sanctions Motion (Addresses things like NFL and Typos)

C) Wrestlers Legal Team Response to WWE Second Sanctions Motion (Interesting the Court did not engage with many (any?) of the arguments advanced by the lawyers for the wrestlers in this motion. My mom told me at a tender age, that there are two sides to the story.

Note: A few people have asked about the inclusion of this post in the WWE’s fee application and some alleged communications with Mr. McDevitt who conjures up some half-baked theory that we tried to deceive him with this post by “backdating” it. The entire attack is nonsense, makes no sense and is meaningless. We are glad the WWE hires lawyers that are focused on resolving important issues such as the precise dates, timestamps and sequence of each post of this important blog, rather than address things like CTE and whatnot.

Continue to Read Story: Here

Here are some of the lowlights:

Dan Haar: Angry judge throws out sweeping WWE concussion lawsuit
Connecticut Post 9/19/2018

“Attorney Kyros has offered the Court no reason to believe that if given a fifth, sixth or seventh chance, he would prosecute this case in a manner consistent with the Federal Rules of Civil Procedure,” Bryant wrote Monday. That’s rare language from a judge and on Tuesday, the vitriol from the two sides didn’t stop.

Kyros, reached in his main office in Hingham, Mass., indicated he’d appeal the “truly tragic ruling” to the 2nd U.S. Circuit, and that Bryant missed a main point of his arguments: CTE cases, because they are developing medical conditions, are not subject to the same time limits for filing. “The decision is wrongly decided on a number of factual and legal grounds. The court simply ignored our (statute of limitations) arguments and paid no attention to the 60 detailed personal appeals in affidavits requested by the judge almost a year ago,”

Kyros said in an email Tuesday. “The comments about me personally are inaccurate, and over the top……

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Heart of a Warrior: Read Jon Heidenreich’s Plea to Judge

On September 29, 2017- almost a year ago the Connecticut Federal Court overseeing the wrestlers claims ordered Mr. Kyros and the lawyers representing the wrestlers to get an affidavit from each, writing:” The Court assumes that Attorney Kyros had a good faith belief that the allegations in the Laurinaitis complaint … were true based on interviews with his clients, in which each revealed information about his or her relationship with WWE. Counsel should therefore have no difficulty producing these affidavits within 35 days.” If we did not produce the affidavits the court would dismiss the claims and award sanctions.

Despite the undertone of derision towards Mr. Kyros, and an almost impossible deadline- try getting 60 affidavits from anyone in 35 days never mind from 60 professional wrestlers! BUT finally a chance to talk directly and explain to the Judge that the allegations were real, made in good faith and very important to understand the factual basis of each of the wrestlers legal claims.

The wrestlers all came through and we were able to get all of the affidavits and file them with the Court by near-impossible to meet 35 day deadline! We worked together round the clock all October to get it done!

But last week the court on September 17, 2018 ruled against the wrestlers anyway with little to no mention of the affidavits other than reciting the order to deliver them and confirming that they were submitted.

On page 36 of last week’s order dismissing the lawsuit the court writes: “In addition to these irrelevant allegations*  are numerous others, including a list of physical injuries that have nothing to do with concussions or head trauma, incurred by several Plaintiffs in the ring. [See SAC Paragraph 37 alleging that “Plaintiff Jon Heidenreich sustained serious shoulder injuries requiring multiple surgeries” and that ; Plaintiff Marty Jannetty sustained a severe broken ankle”]

* The other irrelevant allegations the court lists includes: “WWE is a monopoly that earns $500 million annually” “general observations from… a wrestler who is not a party to this lawsuit” [This is Jessie Ventura, you know the former Governor of Minnesota saying such irrelevancies as “Wrestling operated under some of the most unfair working conditions in the country. I don’t know how they got away with it for so many years”  Can anyone reading imagine how they got away with it?] and “WWE does not provide wrestlers with health insurance” Which the court referred to as a non-exhaustive list.

Below is the actual passage from the wrestlers lawsuit, the court calls “irrelevant allegations” and calls “a list of physical injuries that have nothing to do with concussions or head trauma,” As the astute reader will observe the lawsuit drafters appear to have found some examples to illustrate that the plaintiff wrestlers sustained some rather serious injuries some just possibly related to the head while wrestling.

According to an introductory section summarizing the claims at the beginning of the Wrestlers Lawsuit: “Other plaintiffs have documented serious injuries to their head, back, neck and shoulders from their WWE wrestling careers. These permanent injuries are strongly suggestive of past traumatic head injuries and evidence the WWE’s actual past and ongoing notice and awareness of the risk of long-term neurological issues.

I. Plaintiff Terry Brunk twice broke his neck in an ECW matches, and once broke his jaw;

II. Plaintiff Bryan Emmett Clark has had neck and back disc replacements and repair surgeries from injuries sustained in WWE matches;

III. Plaintiff Mark Canterbury sustained fractured C-7 vertebrae in a WWE match;

IV. Plaintiff Salvador Guerrero IV sustained a Subarachnoid hemorrhage in a WWE match. He also sustained an orbital bone fracture to his skull in a WWE match;

V. Plaintiff Barry Darsow sustained cracked vertebrae in a WWE match;

VI. Plaintiff Earl Hebner experienced brain bleeding shortly after being struck in the head with a metal suitcase refereeing a WWE match;

VII. Plaintiff Michael Halac sustained injuries to his cervical spine resulting in neck fusion surgery in a WWE match;

VIII. Plaintiff Jon Heidenreich sustained serious shoulder injuries requiring multiple surgeries from a WWE in-ring injury;

IX. Plaintiff Joe Laurinaitis sustained herniated two discs in his neck in a WWE match;

X. Plaintiff Shane Douglas sustained a fracture in his spine in a WWE event;

XI.  Plaintiff Vickie Otis sustained two cracked vertebrae in a WWE match;

XII. Plaintiff Sylvain Grenier sustained broken vertebrae in a WWE match;

XIII. Plaintiff Terry Szopinksi herniated two discs during his tenure at WWE;

XIV. Plaintiff Marty Jannetty sustained a severe broken ankle in a WWE match;

XV. Plaintiff Ashley Massaro herniated discs in C4 and C5 vertebrae in a WWE event.

These look like irrelevant allegations? “that have nothing to do with concussions or head trauma”!? As the Plaintiffs state these allegations are not irrelevant but go to the heart of the factual dispute in the case- namely what knowledge did WWE have about the long term health risks the plaintiffs would face as well as the more obvious fact that they ran an unsafe, unregulated workplace with no OSHA oversight in violation of labor laws by not providing workers compensation and so forth. Keep walking nothing to see here…

Btw we will have More on the inclusion of Marty’s ankle in another post.

The photo with Jon Heidenreich in the above post was taken at Legends of the Ring Fan Fest in New Jersey when I drove down to meet some of the wrestlers I already represented. This was rather too much for the WWE, their spies are everywhere! and they trotted out X-Pac to swear out his own weak affidavit in an attempt to discredit Mr. Kyros- the leading advocate for wrestlers legal rights, “I also learned that Mr. Kyros was handing his business card to former WWE wrestlers.” It is an emergency! Get X-Pac involved to stop the wrestlers, they are forming a union! they are talking to lawyers about their legal rights! Learning about CTE! It is a crisis!

Read Mr. Sean Waltman’s Stooge Affidavit by clicking on Image below.

Kyros Was There, It Was Definitely Him

Today a single Federal Judge ruled against the 60 wrestlers and their families in the Laurinaitis case, and ignored their many personal appeals in dozens of affidavits filed with the court. We will have more to say soon, but please keep positive and know that we are fighting every day to get help for everyone.  Here is a very brief statement:

“I stand for professional wrestlers who face the prospect of losing their identity and consciousness to the effects of a latent occupational disease that robs them of their sanity, comfort of their families and memories of everything they achieved entertaining the millions of people who love them.

The lawsuits include some of the world’s most famous athletes including those diagnosed with CTE by the world’s foremost expert in CTE, including Jimmy Snuka and Mr. Fuji, whose brains were studied because of our advocacy and dedication to getting help for former WWE performers.

The opinions expressed in today’s decision about my strong advocacy are inaccurate, bizarre and unworthy of the court. The reasoning of the opinion itself is flimsy as the court finds, in ignorance of the facts, that there is no reasonable basis for the assertions, despite a substantial body of medical peer reviewed literature going back almost a hundred years. In any event these are Jury issues as the plaintiffs demonstrated that the WWE knew about the risks of head injuries long before the 2007 date the court invents (see Dr. Omalu’s Quote above). Additionally the WWE misclassified, exploited, injured these people in violation of labor laws and continues to ignore that CTE even exists in professional wrestling. It is a sad ruling, and we trust the wrestlers claims will be better received in the appeals courts. I will continue to fight and advocate for wrestlers’ legal rights despite this tragic opinion that attempts to cast down my clients’ hopes for better lives.”

Sincerely,
Konstantine Kyros