WWE Wrestlers Fight To Save Concussion Suits At 2nd Circcuit

Excerpts from Law360 article (November 27, 2018) — A group of former professional wrestlers has urged the Second Circuit not to deny its appeal in suits claiming World Wrestling Entertainment Inc. hid the dangers of head injuries from them, saying the court’s previous decision to consolidate their cases means their appeals were filed on time.The wrestlers told the appeals court on Monday that the WWE was trying to have things both ways — it had opposed previous appeals because the courts had consolidated the cases so any appeals would have to wait until all of the cases were resolved, and it is now arguing the appeals must be taken individually, which would bar appeals in cases that were resolved years ago.

According to Monday’s filing, wrestlers in the individual cases, some of which were dismissed in 2016, did attempt to appeal at the time, but because they were consolidated “for all purposes” in 2015, the courts ruled that those appeals were untimely, and that those appeals would be dismissed pending final judgment in all the cases.

“Ultimately, the scenario [the WWE] envision in their motions to dismiss is one where the [wrestlers] could not have appealed when they did, and can not appeal now, effectively eliminating any right of appeal,” the wrestlers argued.

The wrestlers contested the WWE’s reliance on the Supreme Court’s decision in Hall v. Hall, which held that when one of several cases consolidated under federal law is finally decided, the losing party has the immediate right to the appeal, even if other cases are pending.

The wrestlers argued that the Hall decision explicitly leaves open the possibility that some consolidated cases may be treated as a single action, which is how the courts have treated the wrestlers’ cases up to now.

The wrestlers further argued that because of how much the consolidated cases are intertwined — they make the same accusations, based on the same alleged facts, and discovery for certain cases has been cited by the courts for others — separating them into different appeals would result in a “piecemeal” proceeding that would unfairly prejudice the wrestlers.

In the alternative, the wrestlers argued that if the court reverses its position on whether to treat the consolidated cases as a single action, their counsel would assert excusable neglect, as the wrestlers were acting in good faith and following the court’s direction by holding off on their appeals. Doing otherwise would prejudice them, they argued.

Finally, Konstantine W. Kyros of Kyros Law Office PC, representing the wrestlers, argued that the appeal of sanctions against him in two of the cases should also go forward. The WWE had argued the appeals were untimely because the award amounts haven’t been decided, but Kyros argued because the sanctions are tied into the merits of the suits, their review should be taken at the same time as the cases themselves.