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McCullough v. World Wrestling Entertainment Inc.

United States District Court, D. Connecticut

March 27, 2018

RUSS MCCULLOUGH, et al., Plaintiffs,
v.
WORLD WRESTING ENTERTAINMENT, INC., Defendant. EVAN SINGLETON and VITO LOGRASSO, Plaintiffs,
v.
WORLD WRESTING ENTERTAINMENT, INC., Defendant.

          March 25, 2018

          MEMORANDUM OF DECISION GRANTING DEFENDANT WORLD WRESTLING ENTERTAINMENT, INC.'S MOTION FOR SUMMARY JUDGMENT [DKT NO. 330]

          Hon. Vanessa L. Bryant United States District Judge

         I. Introduction

         This action was brought by professional wrestlers Evan Singleton and Vito LoGrasso, who allege that Defendant WWE fraudulently failed to inform them of a link between repeated concussive or subconcussive blows to the head and permanent degenerative neurological conditions. Now before the Court is Defendant World Wrestling Entertainment's (“WWE”) motion for summary judgment on Singleton's and LoGrasso's claims for fraud by omission-the only claims that survived the Defendant's Motion to Dismiss [Dkt. No. 43]. For the reasons that follow, Defendant's motion is GRANTED.

         II. Background

         A. Defendants' Knowledge of a Link Between Head Trauma and Permanent Degenerative Neurological Conditions

         A key issue in this case is when WWE first learned of a potential link between concussive and subconcussive blows suffered by professional wrestlers and permanent degenerative neurological disorders such as chronic traumatic encephalopathy (“CTE”). Plaintiffs' Rule 56(a)(2) statement is rife with mischaracterizations of the evidence as it pertains to this issue. After careful consideration of the evidence in the light most favorable to the Plaintiffs, the Court has determined that the evidence does not support a finding that WWE knew of a risk that repeated head injuries incurred while performing as a professional wrestler could cause permanent degenerative neurological conditions prior to September 5, 2007. The reasons for this finding are discussed in the paragraphs that follow.

         Plaintiffs argue that WWE knew of the risks of repeated head injuries as early as the 1980s. In support, Plaintiffs cite to the deposition of Dr. Joseph Maroon, a neurosurgeon who developed a concussion assessment for athletes, in which he testified that doctors developed a concussion management protocol as early as the 1980s, and that they were aware of the risks of post-concussion syndrome “long before 2008.” [Maroon Dep. at 21-22]. Plaintiffs also cite the testimony of Mark Lovell, a neuropsychologist who worked with Dr. Maroon on concussion testing amateur and professional football players beginning in the 1980s, professional hockey players beginning in 1997, professional soccer players beginning in 2005, and professional race car drivers in the early 2000s. [Lovell Dep. at 24-35]. Dr. Lovell testified that putting an athlete who suffered a concussion back into a game too soon could cause “long-term issues” like memory loss, headaches, dizziness, balance issues, changes in mood and affect, and potentially suicidal ideation. [Lovell Dep. at 39-51]. Neither Dr. Maroon nor Dr. Lovell were retained by WWE prior to 2008. Therefore, even if Dr. Maroon's and Dr. Lovell's statements about concussion science in the 1980s and 1990s could be understood to imply that the risk of permanent degenerative neurological conditions was known to them or to other members of the medical community at that time, that knowledge cannot be imputed to WWE until 2008 at the earliest

         In addition to the testimony of the doctors WWE retained to conduct concussion testing in 2008, Plaintiffs cite to two pre-2007 articles relating to concussions. The first is a 2005 Mayo Clinic article which describes “second impact syndrome, ” which “occurs when a person has a recurrent head trauma while still recovering from a concussion . . . [and] can lead to devastating swelling of the brain, which could [be ]fatal.” [Pl. Exh. 23 at 2]. The article also states that “[s]ome people experience postconcussion syndrome, a condition in which the symptoms of concussion”-such as “memory and concentration problems, headaches, dizziness, confusion or irritiability”-persist for weeks or months after the initial head trauma.” [Pl. Exh. 23 at 3]. According to the Mayo Clinic article, neither second impact syndrome nor postconcussion syndrome are permanent neurogenerative diseases. Rather, the article describes acute swelling of the brain, and postconcussion symptoms that last months rather than permanently.

         The second article was written by Dr. Bennett Omalu in 2005, and detailed the first known case of CTE in a professional football player. In his conclusions, Dr. Omalu stated, “

This case highlights potential long-term neurodegenerative outcomes in retired professional National Football League players subjected to repeated mild traumatic brain injury. The prevalence and pathoetiological mechanisms of these possible adverse long-term outcomes and their relation to duration of years of playing football have not been sufficiently studied. We recommend comprehensive clinical and forensic approaches to understand and further elucidate this emergent professional sport hazard.”

[Pl. Exh. 21 at SINGLETON_0000086] (emphasis added). The article also stated, “This case study by itself cannot confirm a causal link between professional football and CTE. However, it indicates the need for comprehensive cognitive and autopsy-based research on long-term postneurotraumatic sequelae of professional American football.” Id. at SINGLETON0000090. Plaintiff offers as evidence that WWE knew about this article news coverage relating to its equivocal and inconclusive article. [See Pl. Exh. 22, 48]. However, Plaintiff has offered no evidence that WWE was aware of any of this news coverage or of Dr. Omalu's 2005 article. Plaintiff further offers no evidence to suggest that at the time Dr. Omalu's article was published, any research existed that would suggest that Dr. Omalu's findings regarding one football player might apply to professional wrestlers, or that the frequency and severity of head trauma suffered by football players is similar to that suffered by professional wrestlers.

         Plaintiffs also argue that WWE learned of a link between concussions and permanent neurodegenerative disease from Chris Nowinski, a former wrestler who retired from wrestling in 2003 following a diagnosis of post-concussion syndrome. Plaintiffs claim that Nowinski remained employed by WWE following his retirement from wrestling, and that during that time, he began researching the connection between repeated concussions and permanent degenerative neurological conditions. [Dkt. 346 ¶ 163]. Based on this research, Nowinski published a book in September 2006, titled “Head Games: Football's Concussion Crisis.” [Pl. Exh. 24].

         Plaintiff's exhibits regarding Nowinski's work with WWE between 2003 and 2006 are consistent with the affidavit that Nowinski filed with the Court in connection with a discovery dispute in this case. He stated, “After I retired from wrestling in 2003, I occasionally participated in WWE programs as an independent contractor through independent contractor agreements. As my LinkedIn profile indicates, I primarily participated in programs designed to increase youth voter turnout in political elections.” [Dkt. No. 182-2 ¶ 2]. He further stated, “I did not work at WWE corporate headquarters as part of my participation in these programs. I did not have ‘regular interactions with WWE executives, ' as Plaintiffs assert, as part of my participation in these programs.” Id. ¶ 3. Nowinski further described his research as “independent” and stated that he lived in Boston, MA while he was researching his book. Id. ¶ 4.

         This Court has previously addressed Nowinski's involvement with WWE between 2003 and 2006, holding that “Plaintiff . . . has offered no facts to suggest that Nowinski's work with ‘Smackdown Your Vote' during the time period in which he researched and authored the book provides him with any knowledge relevant to” WWE's specific knowledge of or an appreciable risk of a link between wrestling activity and permanent degenerative neurological conditions. [Dkt. Nos. 160, 183]. Since the Court issued that ruling, Plaintiffs have not offered any new evidence showing that WWE was aware of Nowinski's research, that anyone at WWE read Nowinski's book, or that anything in Nowinski's book would suggest a link between professional wrestling and permanent degenerative neurological conditions. Indeed, while Nowinski did wrestle professionally, he also played football for many years, and if the title of the book provides an accurate assessment of its content, the book focuses on a “concussion crisis” in football, not wrestling.[1]

         In June 2007, the professional wrestler Chris Benoit killed his wife and child before committing suicide, prompting Nowinski to publicly speculate that “untreated concussions might have caused [Benoit] to snap.” [Pl. Exh. 36]. During a September 5, 2007 press conference, it was revealed that the wrestler Benoit had been diagnosed with CTE. [V. McMahon Dep. at 22; S. McMahon Dep. at 51; Pl. Exh. 20]. In the immediate aftermath of this revelation, Vince and Stephanie McMahon made several statements to the media in which they questioned the credibility of the study. In particular, Vince McMahon stated that “I would, as a layman certainly wonder whether or not that report has any credibility” and Stephanie McMahon stated that “these studies have not been proven.” [Pl. Exh. 31]. Vince McMahon mentioned his skepticism that Benoit could truly have had the brain of an 85-year old with dementia to news outlets, and in a letter to Benoit's estate's attorney as late as December 2009. [Pl. Exhs. 16, 31, 33]. While Benoit's diagnosis was revealed in September 2007, a peer review article regarding Benoit's condition was not published until September 2010. [Def. Exh. 31].

         B. Concussion ...


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