Appeal Over Brain-Injured Wrestlers Stumbles in 2nd Circuit

MANHATTAN (CN) — Hoping to keep concussion-related claims from former wrestlers pinned down, a lawyer for the WWE told the Second Circuit on Friday that the decades-old claims are hopelessly out of date.

“Some of these claims were time-barred literally when Richard Nixon was president or Jimmy Carter was the president,” Jerry McDevitt, longtime counsel for World Wrestling Entertainment, said this morning during a teleconference.

“These claims have been time-barred for decades and there was no attempt to separate any of them out,” added McDevitt, who is with the Pittsburgh firm K&L Gates.

Representing Joe “Road Warrior Animal” Laurinaitis, Jimmy “Superfly” Snuka and dozens of others, Hingham, Massachusetts-based attorney Konstantine Kyros says the WWE hid the long-term neurological damage that wrestlers faced from years of being pounded in and out of the ring.

Kyros filed the first of six lawsuits on behalf of former WWE wrestlers on Jan. 16, 2015. The following year, Kyros brought a class action against the Connecticut-based WWE and its owner, Vince McMahon, featuring a who’s who of the sport’s past stars, including “Mr. Wonderful” Paul Orndorff, King Kong Bundy, Ahmed Johnson and Ken Patera.

Seven of the wrestlers have died since the suits were filed “without seeing their day in court,” Kyros told Friday’s appellate panel.

One of the deceased wrestlers, Ashley Massaro, was suffering from depression and killed herself last year at age 39, just two months before Kyros filed his brief with the federal appeals court. Kyros on Friday emphasized that he is ensuing that the athletes’ brains will be studied to demonstrate for others the effects of concussive brain damage.

In email after the hearing, Kyros said the WWE’s reliance on caselaw from the 2018 Supreme Court case Hall v. Hall sets the Second Circuit up to “create precedent that forecloses several of the wrestlers’ appeals.”

These appeals were taken pursuant to an earlier mandate in the case of his client Billy Jack Haynes, Kyros wrote, but “the court is now tasked with deciding whether he now has no rights to an appeal under the reasoning in Hall.”

“This would be a manifestly unjust result as no appeal could have been taken under the rules then in existence and even though he followed the earlier mandate of the Second Circuit,” Kyros added.

Two Trump appointees, U.S. Circuit Judges, Michael Park and William Nardini, presided over Friday’s hearing, along with U.S. Circuit Judge Barrington Parker, a George W. Bush appointee.

McDevitt declined to comment after the hearing, which concluded without a ruling.

In his appellate brief, McDevitt accused Kyros of filing “duplicative” class actions as part of “an internet-based scheme to solicit former wrestlers to sue WWE in the hopes of replicating the settlement by the NFL in the class action case against it over chronic traumatic encephalopathy.”

Citing the widespread publicity of the a CTE diagnosis in former wrestler Chris Benoit in 2007, McDevitt also said that Kyros lacks a good faith basis to assert a tolling doctrine.

“One appellant ceased performing in the 1970s,” WWE’s brief states. “Thirteen ceased performing in the 1980s. Nineteen ceased performing in the 1990s. Thirty-three ceased performing between 2000-2010.”

At Friday’s hearing, Kyros responded on rebuttal to McDevitt’s reference to the Nixon’s administration, recalling a 2018 ruling by the Ohio Supreme Court in a case over Steve Schmitz, a running back and receiver for the Notre Dame Fighting Irish in the 1970s who was diagnosed with a latent neurological disease in 2012.

Writing for the majority in Schmitz, Judge Judith French found that, even if former college player experienced some neurological impairment prior to his CTE diagnosis in December 2012, there was no way to conclusively determine that his claims are barred by the statute of limitations since he did not know and had no reason to know that he had suffered a latent brain injury while playing football.

Most of the wrestlers’ claims were dismissed in U.S. District Court as time barred, but McDevitt noted in court Friday that one — Evan Singleton’s fraud-by-omission claim — was tossed as meritless at summary judgment. 

Presiding in the District of Connecticut, U.S. District Judge Vanessa Bryant found that Singleton, who wrestled professionally as Adam Mercer, had not offered any evidence suggesting that WWE intentionally omitted any information in order to induce him to continue wrestling.

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