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McCullough v. World Wrestling Entertainment Inc.

United States District Court, D. Connecticut

July 21, 2016

RUSS McCULLOUGH, a/k/a “Big Russ McCullough”, RYAN SAKODA, and MATTHEW R. WEISE, a/k/a “Luther Reigns, ” individually and on behalf of all Others similarly situated, Plaintiffs,
WORLD WRESTLING ENTERTAINMENT, INC., Defendant. WILLIAM ALBERT HAYNES III, Individually and on behalf of all Others similarly situated, Plaintiffs,




          Hon. Vanessa L. Bryant United States District Judge

         Plaintiffs in this consolidated action are former wrestlers for World Wrestling Entertainment Inc. (“WWE”), a Connecticut entertainment company which produces televised wrestling programming. Plaintiffs allege 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.

         In its March 21, 2016, memorandum of opinion and accompanying Order (the “Opinion”), the Court dismissed plaintiffs’ claims 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.

         However, plaintiffs also claimed that WWE had knowledge of evidence suggesting a link between head trauma that could be sustained during WWE events and permanent degenerative neurological conditions such as CTE and either concealed such evidence or failed to disclose it in the face of a duty to disclose. Although the Court dismissed plaintiffs’ claim that WWE fraudulently misrepresented the risks of wrestling in its performances in a series of public statements, the Court held that plaintiffs LoGrasso and Singleton plausibly stated a claim that WWE fraudulently omitted known facts regarding a link between wrestling activity and permanent brain damage resulting from traumatic brain injuries. The Court further found that this fraud claim may not be tolled by the operation of Connecticut’s statutes of limitations and repose.

         The Court thereafter entered an Order dismissing WWE’s countersuit against Robert Windham, et al on the basis that the complaint failed to state a claim upon which relief could be granted as the Court could not, for the reasons stated in its Opinion, issue a declaration that WWE was not liable on the basis of Connecticut’s statute of limitations. The Court denied as moot WWE’s motion to discover the identities of the unknown John Doe defendants in Windham.

         Currently before the Court are WWE’s Motions to Reconsider [Dkt. 118, Dkt. 119] its March 22, 2016 Opinion and the subsequent dismissal of the Windham action. WWE argues that the Court misapplied the applicable law and alleged facts in determining that LoGrasso’s claims were not time-barred and in finding that Singleton and LoGrasso plausibly stated a claim for fraud by omission. WWE also argues that dismissal of the Windham action was premature and that the stated basis - failure to state a claim for relief - was not the basis of the Windham defendants’ Motion to Dismiss [Dkt. 72] which argued for dismissal on the sole grounds of lack of subject matter jurisdiction.

         For the reasons stated below, WWE’s Motion for Reconsideration of the Court’s Order [Dkt. 116] Granting In Part and Denying In Part Defendant’s Motions to Dismiss the Singleton and McCullough Actions [Dkt. 118] is DENIED.

         WWE’s Motion for Reconsideration of the Court’s Order [Dkt. 117] Dismissing the Windham Action [Dkt. 119] is GRANTED and, upon reconsideration, the Court’s Order at Docket Number 117 dismissing the Windham action for failure to state a claim is hereby VACATED for the reasons articulated below. Having vacated its dismissal of the Windham action, the Court considers the substantive arguments raised in the Windham defendants’ Motion to Dismiss [Dkt. 72] for lack of subject matter jurisdiction and that motion is GRANTED IN PART AND DENIED IN PART. WWE’s Motion for Expedited Discovery of the John Doe Defendants [Dkt. 82] is DENIED AS MOOT.

         I. Standard of Review

         The standard for granting a motion for reconsideration “is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “A motion for reconsideration is justified only where the defendant identifies an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Ayazi v. United Fedn. of Teachers Local 2, 487 F.App'x 680, 681 (2d Cir. 2012) (internal citation and quotation marks omitted); Ensign Yachts, Inc. v. Arrigoni, 3:09-CV-209 (VLB), 2010 WL 2976927 (D. Conn. July 23, 2010) (same). A “motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided.” Shrader, 70 F.3d at 257. Further, Local Rule of Civil Procedure 7(c) requires parties seeking reconsideration to “set[] forth concisely the matters or controlling decisions which counsel believes the court overlooked in the initial decision or order.” D. Conn. Loc. Civ. R. 7(c).

         II. Reconsideration of the Court’s Ruling With Respect to the Claims of Singleton and LoGrasso

         1. Singleton Plausibly Alleges Harm from WWE’s Conduct

         WWE first argues that the Court erred in holding that Plaintiff Evan Singleton could plausibly have been harmed by WWE’s alleged fraudulent omission. In its Opinion, the Court found that, with regard to possible harm to the named plaintiffs, “information about a link to permanent degenerative conditions could plausibly have informed plaintiffs’ own choices about whether and when to re-enter the ring after sustaining a head injury and could plausibly have prevented permanent brain damage.” [Dkt. 116 at 67-68].

         WWE argues that “[u]nder the Court’s reasoning . . . if a plaintiff never ‘re- enter[ed] the ring after sustaining a head injury’ he could not have been harmed by WWE’s alleged fraud by omission.” [Def.’s Mem. at 6]. WWE notes that Plaintiff Singleton alleged that he never wrestled again for WWE after sustaining a single serious head injury on September 27, 2012. Therefore, WWE argues, Singleton could not have plausibly been harmed by the omission of facts which would have affected any decision to re-enter the wrestling ring.

         The Court’s Opinion should not be read to identify every basis for liability which the complaint could be construed to assert. The Court held that this allegation of harm was sufficiently plausible that both plaintiffs’ claims for fraudulent omission stated a claim for relief under Rule 12(b) of the Federal Rules of Civil Procedure. The plaintiff's decision to re-enter the ring after sustaining an injury was not the sole basis for liability asserted by the complaint. Rather, Singleton also alleged that WWE was aware of the risks of wrestling in 2005, failed to disclose the risks to its wrestlers, and that he was injured wrestling for WWE in 2012. Thus the complaint also alleges that WWE failed to disclose to Singleton information which could have prevented him from entering WWE's simulated wrestling ring and wrestling for WWE in the first instance. The complaint further alleges that WWE's failure to disclose the risks of wrestling could have impacted Singleton’s medical decisions. To be clear, Singleton has plausibly alleged that WWE failed to disclose information which could conceivably have prevented him from wrestling, could have enabled him to mitigate the risks of wrestling and could have prompted him to obtain medical treatment promptly after wrestling.

         WWE’s Motion for Reconsideration on this basis is DENIED.

         2. Allegations Satisfying the Particularity Requirements of Rule 9(b)

         WWE next argues that “none of the three alleged facts relied on by the Court” in determining that plaintiffs had adequately plead the “who” and “when” - the specific speaker(s) and the context of the alleged omissions - required by Rule 9(b) are sufficient to satisfy the requirements of Rule 9 “based on the very legal principles on which the Court relied in dismissing plaintiffs’ affirmative misrepresentation claims.” [Def.’s Mem. at 9]. In its Opinion, the Court had identified three paragraphs in the Second Amended Complaint of plaintiffs Singleton and LoGrasso (the “SAC”) that shed sufficient light on both the speakers and the context of the alleged omissions:

55. “. . . WWE continues to understate the risks and dangers of CTE, as evidenced by Dr. Joseph Maroon‘s statements to the NFL Network, Total Access in March 2015, ‘The problem of CTE, although real, is its being over-exaggerated.’

73. “In a joint interview for the 2007 CNN documentary Death Grip: Inside Pro Wrestling, WWE CEO Vincent K. McMahon and former WWE CEO Linda McMahon attacked Dr. Omalu and Dr. Bailes‘s finding that Benoit had suffered from CTE. This was part of a larger plan to deny that Benoit had suffered from CTE and to discredit the research suggesting he had.”

125. “During his training and wrestling career with WWE, Mr. LoGrasso was told by WWE employees and at the time believed that injuries he suffered were part of ‘paying his dues’, and believed that having ‘your bells rung’, or receiving ‘black and blues’ and bloody noses only resulted in the immediate pain and injury with no long-term ramifications or effects.”

[SAC ¶¶ 55, 73, 125]. WWE argues that Dr. Maroon’s statements to NFL Network in March of 2015 cannot form the basis of a fraudulent omission claim because plaintiffs could not reasonably have relied upon a statement made after plaintiffs “commenced this lawsuit, and years after they last performed for WWE.” While this may be true, the March 2015 comments were not the only statements cited by the plaintiffs. Further, they were cited by plaintiffs as illustrative of a continuing effort by WWE to downplay the risks of permanent brain damage to WWE wrestlers.

         The Opinion referenced other statements as well. For example, the Court noted WWE’s statements to ESPN in 2009 in regards to allegations that former wrestlers Chris Benoit and Andrew Martin could have sustained permanent brain damage from wrestling. In 2009, WWE stated that it was “unaware of the veracity” of tests conducted by Dr. Omalu which purported to diagnose Benoit with CTE, that WWE had “been asking to see the research and tests results in the case of Mr. Benoit for years and has not been supplied with them” and mocked Benoit’s ability, prior to his death, to find “his way to an airport, let alone . . . remember all the moves and information that is required to perform in the ring.” [SAC ¶ 69]. The Court held that the 2009 statement could not form the basis of an affirmative misrepresentation claim, but noted that “one could accuse the WWE of having made the statement perhaps with the intent of downplaying a link between wrestling and CTE.” [Opinion at 60].

         The Court cited Dr. Maroon’s 2015 statement as illustrative of the “what” - the context of the alleged omissions - because the 2015 statement, along with the 2009 statement to ESPN and other statements discussed in the Opinion, provide adequate notice to WWE under Rule 9(b) of the instances in which it allegedly failed to disclose a known link between wrestling and CTW: specifically, its public statements to the media downplaying and discrediting such risks. The 2007 interview by Vincent and Linda McMahon is cited by the Court as yet another example of such public statements.

         Similarly, in the NHL concussion litigation cited in the Court’s Opinion, Judge Nelson noted the NHL’s alleged response to questions surrounding concussions in professional hockey that the league needed “more data, more research, we cannot say anything conclusive.” 2008 WL 4307568 at *13. NHL Commissioner Bettman was alleged to have said of fighting that “[m]aybe it is [dangerous] and maybe it's not.” Id. at *10. The statements identified by plaintiffs here are in sum and substance similar to those that Judge Nelson found to have supported a fraud claim in the NHL litigation.

         WWE argues, however, that “because Mr. McMahon merely expressed his ‘opinion or skepticism as to the truth’ of a specific aspect of Dr. Omalu’s and Dr. Bailes’ findings, ” and that the Court’s Opinion earlier held such opinions could not form the basis of an affirmative misrepresentation claim, that it is therefore “implausible that omitting that same matter could somehow become a fraud by omission.” [Def.’s Mem. at 10]. In other words, WWE argues:

. . . . under the Court’s reasoning, had WWE actually stated to LoGrasso that it did not believe Dr. Omalu’s and Dr. Bailes’ findings established a link between head trauma and long-term neurodegenerative disease, which it never said, it could not be fraud. But if WWE said nothing to LoGrasso because WWE did not believe that a link had been established between head trauma and long-term neurodegenerative disease based on Dr. Omalu’s and Dr. Bailes’ findings or because it did not know if such findings were correct, it then would become fraud.

[Id. at 11]. While the Court is sensitive to the need to prevent a legal quandary as troubling as that which WWE proposes, no such quandary has been created here. Rather, WWE has mistakenly conflated the nuanced analysis of the claims of fraudulent omission and fraudulent misrepresentation.

         The Court’s held that plaintiffs had plausibly alleged that WWE may have had an independent duty to disclose information linking its simulated wrestling performances with CTE and other neurological conditions and may have breached that duty by failing to disclose such information in public statements. Such a breach may have occurred if WWE had publicly stated that it did not believe Dr. Omalu’s findings. Or it may have occurred if WWE had privately stated to Plaintiff LoGrasso, personally, that it needed more time to study Dr. Omalu’s findings. Or it may have occurred if WWE had remained entirely silent on the issue. If WWE knew and failed to disclose information which credibly refuted or seriously undermined the opinions and other statements of fact it expressed, it may have failed to disclose information in breach of its duty to its former wrestlers.

         Wholly separate and apart from the allegation that WWE had a duty to disclose, and failed to disclose, known information linking WWE wrestling with CTE, are the plaintiffs’ now-dismissed allegations that WWE executives, in several specific public statements, fraudulently misrepresented the risk of CTE to current and former wrestlers. The Court’s Opinion rejected these fraudulent misrepresentation claims on the basis that the specific statements cited were either expressions of opinion or statements that were not alleged to be false. While WWE could not be held liable for fraudulent misrepresentation if it had stated to LoGrasso, personally, that it did not believe Dr. Omalu’s findings, it could plausibly be held liable on that same theory if it had stated to LoGrasso that it did not believe those findings because the findings were published in the National Enquirer and only peer reviewed by a panel of podiatry students.

         The Court reaffirms its holding that the 2007, 2009 and 2015 statements both provide adequate context and adequately identify the specific WWE executives who are alleged to have breached their duty to disclose. WWE’s Motion for Reconsideration on this basis is DENIED.

         3. Plausible Inference of Fraudulent Intent

         WWE next urges that the Court “overlooked the complete absence of any allegation giving rise to strong [sic] inference of fraudulent intent.” [Def.’s Mem. at 13]. In its Opinion, the Court noted that “[p]laintiffs simultaneously argue on the one hand that studies and data linking [head injuries] with permanent degenerative neurological conditions were both widespread and widely-publicized, and on the other hand that plaintiffs had no knowledge of any of this widely-publicized information.” WWE argues that “[i]n light of the Court’s astute observation regarding this “inherent contradiction” underlying plaintiffs’ fraud claims, it is respectfully submitted that . . . [t]he admitted widespread publicity about the very information supposedly omitted renders any suggestion of fraudulent intent highly implausible.” [Def.’s Mem. at 14].

         The Court has already considered and rejected this argument, in an earlier portion of the Court’s Opinion finding that plaintiffs had pled an adequate basis for tolling the statutes of repose due to fraudulent concealment of their underlying cause of action. The Court noted, in particular, that “the Wellness Program was created for WWE by an attorney in response to the death of a former wrestler and appears to have immediately embraced a critic of some aspects of recent CTE studies.” [Opinion at 47]. The Court also noted that WWE’s 2009 statement to ESPN was in response to allegations concerning the deaths of two specific former wrestlers who may have had claims similar to those raised by ...

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