WWE Concussion Lawsuit – Judge makes decision on whether Chris Nowinski should testify

Latest WWE Concussion Lawsuit Updates – Chris Nowinski Aspect

June 28 Update

Judge Vanessa Bryant issued an order on Tuesday denying the Plaintiffs’s motion to re-open discovery to interview Chris Nowinski as it relates to the remaining concussion claim against WWE.

Barring a post-discovery development, it appears that Nowinski will not be forced to testify in the ongoing concussion lawsuit by plaintiffs Vito LoGrasso and Evan Singleton, through attorney Konstantine Kyros.

Judge Bryant filed an order in the U.S. District Court of Connecticut “denying the motion for reconsideration” that discovery be re-opened to allow for Nowinski to be interviewed.

“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,'” Judge Bryant wrote.

“Plaintiff has not identified any facts or controlling decisions that the Court overlooked when the Court found that Plaintiff had not demonstrated that the prior discovery deadline could not be met despite the due diligence of counsel.”

Judge Bryant was not swayed by the Plaintiffs presenting an argument that Nowinski appears to be closely tied to WWE, making it seem like there is a conflict of interest.

“Plaintiffs have not identified facts, beyond mere speculation, that Nowinski has knowledge concerning WWE’s own knowledge or lack thereof that is relevant to the Court’s discovery Order,” Judge Bryant continued.

“If Nowinski indeed undertook research and published a book and made public statements concerning head injuries, such facts are publicly available for plaintiff to use in building a case to the extent such facts are relevant to the surviving claim.”

Judge Bryant closed her order that the Plaintiffs have not demonstrated a need for “both reopening the discovery period and compelling the appearance of a third party witness (Nowinski).”

If no other matters are presented to the court, then the discovery period is essentially closed.

The next big date is August 1 when dispositive motions are due to either resolve the case in favor of one party or the other, or advance to the trial stage.

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June 21 Update

– WWE met the deadline to respond to a new request for Chris Nowinski to be deposed in the concussion lawsuit brought on by Vito LoGrasso and Evan Singleton.

Chris Nowinski’s legal representation also filed a memo opposing the plaintiff’s motion to force Nowinski to testify in the case.

WWE’s 18-page response presented by lead attorney Jerry McDevitt requested the motion be denied on the grounds that the “plaintiffs have shown no basis for the Court to reconsider its lack of diligence finding.”

The plaintiffs motion for the court to force Nowinski to testify, citing a Boston Globe report questioning whether Nowinski is too closely tied to WWE. The plaintiffs also argued that the article “outlines the very same relevant knowledge Mr. Nowinski possesses and which Plaintiffs seek to explore.”

McDevitt argued that the article as a basis for forcing Nowinski to testify is not justification for the “Court’s reconsidering its decision not to permit the deposition of Nowinski.”

Specifically, McDevitt made the following claim about the plaintiffs’s attorney, Konstantine Kyros, in the footnotes of Page 3: “Kyros was feeding his phony conflict of interest story to a friendly reporter at the Boston Globe to demean and intimidate Nowinski, and fed that reporter certain of his wrestlers/clients to be sources furthering the story.” The item in the footnotes continues: “Perversely, plaintiffs’s counsel then acted as if that hit piece was some sort of supplemental authority.”

McDevitt also vowed to present “a long line of unethical and sanctionable actions in this lawsuit, the full extent of which will be placed before the Court when WWE moves for summary judgment and other relief on August 1, 2016.”

On the same day that WWE filed its response requesting the Court deny the Plaintiffs’s motion, Nowinski’s council filed a 10-page document echoing WWE’s filing.

Nowinski’s counsel argued that the plaintiffs “still fail to articulate any legitimate basis for the deposition to go forward and rehash the same ‘factual’ justifications that this Court previously determined were not relevant to plaintiffs’s sole remaining claim in this case.”

The memo identified three main reasons why they believe the motion should not be granted for Nowinski to be deposed.

(1) Plaintiffs do not argue, and certainly do not meet, the strict standard for a motion of reconsideration.

(2) The subpoena is invalid and unenforceable, and discovery has ended.

(3) Plaintiffs rely on incorrect facts in an attempt to seek information well beyond the Court-ordered discovery limitation.

Specific to Item #3, Nowinski’s attorney argued against a “purported conspiracy theory” that Nowinski has a conflict of interest with WWE.

Citing the Boston Globe’s initial report questioning the relationship between WWE and Nowinski, attorney Keith Carroll wrote: “Discovery has finished and yet Plaintiffs cannot point to a single document or piece of testimony that supports these factual assertions in their Motion. Plaintiffs’s counsel should accept the rulings of the Court and stop harassing Mr. Nowinski.”

After receiving the memos from WWE and Nowinski’s legal representative, Judge Bryant will make a ruling on the Plaintiffs’s latest argument for Nowinski to testify.

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– Also related to Nowinski, the Boston Globe published a second related article questioning whether the Boston University School of Public Health pulled an award for famed concussion doctor Bennet Omalu because he talked to the Globe for their initial report questioning Nowinski’s ties to WWE.

BU is affiliated with Nowinski’s Concussion Legacy Foundation, prompting Omalu to question whether the school pulled the research award because of his comments to the newspaper.

Dr. Omalu said the school’s explanation for pulling his award at an anniversary gala is because “the gala event has evolved in the last month and we have had to change our programming.”

The Globe reports there is animosity between Nowinski and Omalu as they pursue “separate paths at the forefront of CTE research.”

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June 14 Update

Judge Vanessa Bryant issued an order requesting WWE respond to the Plaintiff’s motion for the Court to re-consider an extension of the discovery deadline to depose Chris Nowinski.

“In order to continue moving this case forward, the Court requests WWE’s response, if WWE intends to respond, to Plaintiff’s Motion for Reconsideration on or before June 21. WWE is, of course, free to stand on the arguments raised in its prior Opposition if it elects to do so,” wrote Judge Bryant.

Also on Tuesday, the Plaintiffs (Vito LoGrasso and Evan Singleton) filed a supplemental memo in support of why they believe the Court should allow their attorneys to interview Chris Nowinski.

The Plaintiffs cited the Boston Globe’s report over the weekend questioning whether Nowinski is “too cozy” with WWE. They argued that the article “outlines the very same relevant knowledge Mr. Nowinski possesses and which Plaintiffs seek to explore.”

“Plaintiffs therefore respectfully request that this Court reconsider its order on Plaintiffs’s motion for leave to file motion to compel compliance with the deposition subpoena,” closed attorney Andrew Sciolla, representing lead attorney Konstantine Kyros.

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June 10 Update

– Attorneys for the Plaintiffs (Vito LoGrasso and Evan Singleton) filed a motion on June 10 asking the court to reconsider denying Chris Nowinski’s testimony in their ongoing concussion lawsuit against WWE.

The two-page filing in the U.S. District Court of Connecticut argued for the judge to re-open discovery after the June 1 deadline to allow for them to depose Nowinski in Massachusetts.

Judge Vanessa Bryant previously denied the original motion compelling Nowinski to testify. Nowinski’s attorney argued that Nowinski’s testimony was irrelevant to the remaining claim against WWE, which the judge sided with.

The Plaintiffs disagreed in their most-recent motion: “Plaintiffs respectively submit that The Court should reconsider its order because the Court erred in denying the Plaintiff’s motion and not granting Plaintiffs a brief extension of the discovery period to enforce their timely-served subpoena and conduct the deposition of Mr. Chris Nowinski.”

“Mr. Nowinski possesses critical information related to Plaintiff’s claims, and Defendants’s repeated attempts to frustrate and side-step all of Plaintiffs’s discovery requests related to Mr. Nowinski have so far prove(n) successful and are the true cause of the delay despite Plaintiffs’s diligent efforts to conduct relevant and appropriate discovery.”

The Plaintiffs are asking for the court to “briefly reopen discovery,” similar to a two-week extension that was granted by the Court for the deposition of Stephanie McMahon.

“As such, it should be clear that Plaintiffs have no desire to prolong discovery or delay this litigation for any longer than absolutely necessary,” wrote the attorneys.

The motion was written by Andrew J. Sciolla on behalf of lead attorney Konstantine Kyros of the Kyros Law Offices.

– Also over the weekend, the Boston Globe published a lengthy overview of Nowinski’s role in concussion research, including whether Nowinski is “too cozy” with WWE.

The basis of the article was former wrestlers feeling like they are being left behind by Nowinski, who has shifted his concussion research approach to establishing a donor registry for taking in new brains to study for the long-term effects of concussions. Not included are wrestlers who recently died – Chyna, Balls Mahoney, and Axl Rotten.

“Many people who meet our brain donation criteria die each year, and I would estimate we do not pursue over 99 percent of cases,” Nowinski replied to the Boston Globe.

The cases instead went to concussion researcher Dr. Bennet Omalu. Interestingly, the Globe reported that attorney Konstantine Kyros represented the families of Chyna, Mahoney, and Rotten in submitting their brains to Omalu for examination.

The Globe made the editorial decision not to reference Nowinski’s relationship with WWE as a central theme in the ongoing concussion lawsuit. Nowinski has yet to testify in the case after his legal representative argued that Nowinski should not have to testify. The court upheld Nowinski’s objection, which the Plaintiffs argued against in their most-recent filing.

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June 7 Update

Judge Vanessa Bryant denied the Plaintiff’s motion to compel Chris Nowinski to testify in the ongoing concussion lawsuit against WWE.

Judge Bryant filed a motion Tuesday (June 7) in the U.S. District Court of Connecticut stating that attorneys for plaintiffs Vito LoGrasso and Evan Singleton did not demonstrate enough reason for Nowinski to be deposed beyond the discovery deadline of June 1.

“To the extent that the relief Plaintiff’s Motion actually seeks is an Order of this Court reopening discovery in this case for the purpose of deposing Mr. Nowinski, such Motion for relief is denied,” wrote Judge Bryant.

Judge Bryant added that the plaintiffs’s motion last week “has not indicated that Mr. Nowinski has any specific knowledge relevant to the Court’s discovery Order.”

Last week, the Plaintiffs motioned for Judge Bryant to compel Nowinski to testify. This followed Nowinki’s legal representative denying access to Nowinski on the grounds of a claimed “invalid and unenforceable subpoena” and a claimed lack of information on how Nowinski was relevant to the case.

Judge Bryant sided with WWE’s argument that the plaintiffs did not demonstrate how Nowinski’s testimony would be relevant to the remaining claim in the case of whether WWE fraudulently did not disclose the long-term effect of concussions to wrestlers.

“Plaintiff’s Motion has not indicated that Mr. Nowinski has any specific knowledge relevant to the Court’s discovery Order. Even if true, the allegations that Mr. Nowinski has both criticized and praised WWE’s concussion protocol, given presentations about concussions to wrestlers and accepted a donation from WWE for the Concussion Legacy Foundation are not relevant to the issue of WWE’s knowledge or lack thereof and appear aimed at an audience other than this Court,” Judge Bryant wrote.

Judge Bryant also denied the Plaintiff’s motion to use the proposed 14-day extension period to depose Nowinski. Judge Bryant also sided with WWE that the Plaintiffs waited too long to attempt to interview Nowinski.

“Furthermore, the Motion does not provide good cause pursuant to Local Rule 7(b) for why Plaintiff’s counsel, in the exercise of diligence, could not depose Mr. Nowinski or file a Motion to Compel such deposition in the six months prior to the discovery deadline,” Judge Bryant ended her order.

In her order, Judge Bryant did not officially address the proposed 14-day extension period for additional discovery. However, she ruled that re-opening the discovery period to depose Nowinski is off the table.

The next official noteworthy date is August 1, which is the deadline for dispositive motions to be filed. It remains to be seen what other activity takes place over the next seven weeks.

June 3 Update

To wrap up the week, attorneys for WWE and Chris Nowinski filed separate memos opposing the plaintiffs’s motion for Nowinski to be deposed in the ongoing concussion lawsuit.

The background is representatives for the plaintiffs, Vito LoGrasso and Evan Singleton, requested a deposition of concussion expert Chris Nowinski in May. The deposition was postponed after Nowinski’s legal representative refused to allow Nowinski to testify based on the argument that Nowinski’s testimony was irrelevant to the remaining legal claim against WWE.

The plaintiffs’s attorney, Konstantine Kyros, followed with a motion requesting the U.S. District Court of Connecticut to compel Nowinski to testify, believing his testimony was relevant to the remaining legal claim that WWE knew of and did not disclose the long-term effects of concussions on wrestlers.

– On Friday (June 3), WWE’s lead attorney Jerry McDevitt wrote a strongly-worded 12-page memo requesting the court dismiss Kyros’s request for Nowinski to be deposed.

McDevitt based his argument on believing the plaintiffs’s subpoena for Nowinski to testify was “invalid and unenforceable.” McDevitt added his belief that topics for Nowinski to be interviewed about “are irrelevant under this Court’s orders and can make no difference concerning the outcome of this case.”

McDevitt went on to dissect Kyros’s approach to the case, including believing the plaintiffs are not following the Court’s instructions on the remaining claim in the case.

“Plaintiffs also seek to depose Mr. Nowinski on topics that reflect a continued disregard for the Court’s orders regarding the scope of discovery in this case,” McDevitt argued. “The Court has held that this case is not about concussion prevention and that discovery merely reflecting a desire to limit concussions and prevent injury to WWE talent or specific incidences of head trauma during WWE activities are not relevant or proportional to the needs of this case.

“The topics on which Plaintiffs seek to depose Mr. Nowinski fall outside the clear limitations of discovery established by the Court and are irrelevant to the remaining fraud by omission claims of Singleton and LoGrasso.”

Because WWE is arguing that Nowinski does not need to be deposed, McDevitt went on to write that he believes the plaintiffs have not demonstrated the need for further investigation into the remaining claim of fraudulent nondisclosure about the long-term effect of concussions. Therefore, the discovery period should conclude on June 1 without a 14-day extension.

Overall, McDevitt said he believes his argument shows the plaintiffs’s counsel has shown “a disdain for the standing orders of this Court; for this reason alone, Plaintiffs’s motion should be denied.”

McDevitt’s memo included paragraphs that were blacked out in digital form. Also, the attached Exhibit A enhancing McDevitt’s argument was sealed because it contains business information about WWE that the company has not gone public with.

– Also on Friday, the legal representative for Chris Nowinski filed a memo claiming “there is no good cause to grant leave to the Plaintiffs” to file a motion to compel Nowinski to testify.

“Plaintffs’s subpoena is invalid, unenforceable, and would only lead to a fishing expedition beyond the scope of this Court’s discovery order. The Court should deny Plaintiffs’s motion,” argued an attorney for the Mintz Levin law firm.

Within the 7-page memo to the court, attorney Keith Carroll detailed why they believe the subpoena was improper, therefore disqualifying Nowinski from having to testify.

“Plaintiffs’s motion disingenuously suggests that Mr. Nowinski simply ignored a properly issued subpoena for a deposition scheduled on June 1, 2016. That is fiction. Plaintiffs well know that the subpoena issued by their counsel was facially invalid and unenforceable,” wrote Carroll.

The second argument is Nowinski’s legal representatives believe the Plaintiffs only wanted to interview Nowinski to obtain information about WWE outside of the scope of the remaining legal claim against WWE.

“Plaintiffs seek to obtain information about other pending or dismissed cases and to confront Mr. Nowinski with Plaintiffs’s concocted conflict of interest theory that is designed to create fodder for the press, but which has no bearing on the single surviving claim in this case,” wrote Carroll. Notably, the “fodder for the press” item included a footnote referring to PWTorch’s previous coverage of the case on June 1 when the Plaintiffs’s filed a motion to compel the court to have Nowinski testify.

Carroll continued: “Even if the subpoena were valid, which it is not, it would still impose an undue burden on Mr. Nowinski.” After attempting to deconstruct the Plaintiffs’s motion to compel, Carroll wrote, “Plaintiffs are grasping at straws and searching for information well beyond the Court-ordered scope of discovery.”

Carroll also attempted to dismiss Kyros’s claim that Nowinski has unique knowledge relevant to the outstanding legal claim that can only be obtained through his deposition. “Topics outlined by the Plaintiffs all relate to information that can be and should be obtained from the WWE,” Carroll wrote. “Plaintiffs fail to articulate how an outside third party like Mr. Nowinski would have any knowledge of internal WWE programs and protocols.”

“There is no good reason and no legal basis for Plaintiffs to depose Mr. Nowinski,” Carroll wrote before concluding that the Court should deny the Plaintiffs’s motion.

This sets the stage for next week’s events, which will likely include a response from Kyros and potentially a decision from Judge Vanessa Bryant on whether Nowinski should be deposed and/or the June 1 discovery deadline should be extended 14 days.

June 1 Update

June 1 was the deadline for discovery. However, Judge Vanessa L. Bryant of the U.S. District Court of Connecticut proposed a 14-day extension if the Plaintiffs can make a case that WWE has withheld information on the outstanding claim of whether the company had “knowledge of a link between wrestling activity and permanent degenerative neurological conditions.”

The latest point of contention between the Vito LoGrasso/Evan Singleton camp (plaintiffis) and WWE (defendants) is whether former WWE star Chris Nowinski should be deposed as part of the outstanding claim.

Nowinski, an expert in concussions and concussion research, was scheduled to be deposed on June 1. However, the Plaintiffs notified the court that Nowinski did not make his scheduled deposition appointment; his attorney argued that Nowinski’s testimony was irrelevant to the outstanding claim.

The LoGrasso/Singleton camp argued in their June 1 motion that Nowinski “has unique knowledge directly relevant to Plaintiff’s claims which can only be obtained through his deposition, notably knowledge regarding his direct involvement with WWE’s concussion research programs, the extent of WWE’s involvement in and knowledge of concussion research by the Concussion Legacy Foundation (an organization founded by Mr. Nowinski formerly known as the Sports Legacy Institute), and WWE’s implementation of concussion prevent protocols.”

The motion went on to question whether Nowinski refused to testify because WWE donated $1.2 million to the Concussion Legacy Foundation for concussion research. Attorneys for LoGrasso/Singleton argued that Nowinski has “knowledge directly relevant to whether WWE has knowledge of and failed to disclose a link between wrestling activity and permanent degenerative neurological conditions.”

As a result of Nowinski’s attorney refusing to allow his client to testify, the LoGrasso/Singleton camp is claiming Nowinski is “in contempt of Court and must be compelled to appear for deposition.”

The attorneys motioned for the court to order Nowinski to comply with the deposition request. They also asked for a leave to depose Nowinski in the Boston area, where he resides, under the umbrella of the District of Massachusetts within the 14-day extension.

In an email, Nowinski’s camp argued that his testimony does not fall within the outstanding claim of whether WWE had knowledge of the long-term risks of their wrestling practices.

Nowinski’s representative, Brian P. Dunphy of the Mintz Levin law firm, emailed and mailed a three-page later on May 27 to the plaintiffs’s lead attorney, Konstantine Kyros, declaring that Nowinski would not be deposed on the grounds that Nowinski was “under no obligation to appear because the subpoena is facially invalid and unenforceable.”

In summary, the reasons were because Dunphy felt the boundaries and questions were not clear, there was no clear link between Nowinski’s potential testimony and the outstanding claim agaisnt WWE, and he felt that Kyros was on a “fishing expedition” for information about WWE to build his case.

One paragraph of Dunphy’s email reads: “Attorney Kyros asserted that, since Mr. Nowinski and the Concussion Legacy Foundation have been long involved in the public discussion around the risks of concussions, Mr. Nowinski may have relevant information. Although Mr. Nowinski and the CLF are at the forefront of advocacy and research about the effects of concussions, Mr. Nowinski need not sit for a deposition simply to answer boundless, undefined questions about publicly available information regarding his work, and the CLF’s work, spanning nearly nine years.”

After receiving the reply on May 27 and after Nowinski did not appear at the deposition on June 1, attorneys for LoGrasso/Singleton petitioned the court to compel Nowinski to testify as part of the 14-day window extending the discovery period.

Kyros wrote in the motion that he believes he satisfied attorney Dunphy’s concerns about the scope of the inquiry. “I attempted to explain the various topics on which I believed Mr. Nowinski is knowledgable. These topics include WWE’s involvement with Mr. Nowinski’s organization, the Concussion Legacy Foundation, and other concussion research programs; Mr. Nowinski’s direct involvement in WWE’s implementation of concussion prevention protocols and his presentation of information to WWE wrestlers directly related to CTE; and Mr. Nowinski’s unique perspective as a former WWE wrestler who was forced to retire after suffering repeated head injures. Again, Mr. Dunphy was unsatisfied with my representations,” Kyros wrote.

The filing included a break down of the timeline of events:

• May 10: Attorneys for LoGrasso/Singleton served WWE with a notice of deposition related to Nowinski.
• May 16: Nowinski was served with a notice of deposition.
• May 24: Nowinski’s attorney, Brian Dunphy, spoke with a legal representative for the plaintiffs, Eric Mirabella, to address the subpoena.
• May 25: Nowinski’s attorney, Dunphy, spoke with the Plaintiffs’s chief legal representative, Konstantine Kyros. There was no resolution.
• May 27: Dunphy emailed and mailed a letter refusing to allow Nowinski to be subpoenaed, claiming Nowinski is “under no obligation to appear because the subpoena is “facially invalid and unenforceable.”
• May 31: Kyros notified WWE on the evening of May 31 that Nowinski would not be providing testimony as scheduled and the deposition would not go forward.
• June 1: Nowinski was scheduled to be deposed at the Mirabella Law office in Boston. Nowinski did not appear.
• June 1: Kyros filed a motion asking the Court to compel Nowinski to testify.

May 31 Update

After a weekend and holiday to review a full week of back-and-forth between WWE’s attorneys and the attorneys for Vito LoGrasso and Evan Singleton, judge Vanessa L. Bryant issued a four-paragraph order Tuesday in the U.S. District Court of Connecticut regarding aspects of the concussion litigation.

Judge Bryant granted one of the motions set for by the LoGrasso/Singleton camp (plaintiffs) and denied other motions. Included was Judge Bryant ordering that WWE (defendant) comply with a request to provide documentation in a specific area.

Judge Bryant said WWE is “under an obligation to disclose such documents” that pertains to whether WWE had “knowledge of a link between wrestling activity and permanent degenerative neurological conditions.”

Judge Bryant noted in her order: “The sole remaining claim (from the Plaintiffs) concerns an allegation of fraudulent non-disclosure of knowledge of a link between wrestling activity and permanent degenerative neurological conditions.

“To the extent there are documents within the categories identified by Plaintiffs Motion to Compel, including documents related to the use of helmets, the elimination of wrestling moves, the implementation of the Wellness program, or the hiring of specific personnel and the adoption of specific protocol, or the incidences of concussions among WWE talent which reflect a specific knowledge of OR an appreciable risk of a link between wrestling activity and permanent degenerative neurological conditions, then WWE is under an obligation to disclose such documents,” Judge Bryant wrote. (The above text was bolded in the ruling.)

However, Judge Bryant denied the Plaintiff’s requests for additional cooperation from WWE pertaining to “concussion prevention.” She set the parameters that LoGrasso/Singleton cannot request documents that relate to common injuries as part of the job.

“To the extent information within the identified categories merely reflects a general desire to limit or prevent head injury to WWE talent, or the occurrence of head injuries among WWE talent, such information is irrelevant to the claim at hand and is not discoverable,” she ruled.

Judge Bryant also denied two motions to obtain documents prior to 2005 and the medical records of Big Vito and Singleton.

“Plaintiffs have not presented any factual predicate whatsoever entitling them to discover documents or information dated prior to the year 2005 and absent such a factual predicate Plaintiffs motion to compel is denied on that issue,” Judge Bryant ruled.

“Lastly, Plaintiffs demand for WWE to disclose Plaintiffs own medical files is denied in as much as it seeks production of information within Plaintiffs control and access and permissibly gathered by WWE at Defendants own expense.”

The deadline for discovery was scheduled for Wednesday (June 1), which is also when WWE personnel were scheduled to be disposed. Judge Bryant noted at the end of the order that both parties have two weeks to provide additional documentation showing they have complied with the court order.

“The Court will permit the parties to supplement their discovery responses no later than fourteen days after the discovery deadline to provide the information they have each been compelled to disclose,” Judge Bryant closed the ruling.