WWE Wrestlers Must Wait to Appeal Concussion Dismissals

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By Patrick Gregory

Sept. 27 — Former professional wrestlers can’t appeal dismissals of their putative class actions against World Wrestling Entertainment Inc. concerning brain injuries and concussions just yet, the U.S. Court of Appeals for the Second Circuit ruled Sept. 27 ( McCullough v. World Wrestling Entm’t, Inc. , 2016 BL 317531, 2d Cir., No. 16-1231, 9/27/16 ).

The dismissals aren’t yet appealable final decisions because the cases here were consolidated “for all purposes” with others that are still pending, the court said in a per curiam decision.

Matthew Wiese—who wrestled as “Luther Reigns”—and other plaintiffs sued WWE, alleging that the company was negligent in preventing and treating its wrestlers’ concussions.

Gelboim Distinguished

They argued that dismissals of those claims were appealable under Gelboim v. Bank of Am. Corp., 83 U.S.L.W. 4082, 2015 BL 14048 (U.S. Jan. 21, 2015).

But Gelboim held that the dismissal of a case consolidated for pretrial, multidistrict litigation purposes—not for “all purposes”—was an appealable final decision.

The U.S. Supreme Court explicitly declined to say whether the dismissal of a case consolidated with others for “all purposes” would be a final decision, the Second Circuit said.

It therefore applied a “strong presumption” that the dismissals here weren’t appealable while the other cases were pending, based on Hageman v. City Investing Co., 851 F.2d 69 (2d Cir. 1988).

The plaintiffs failed to overcome that presumption, the court held.

Judges Jon O. Newman, Ralph K. Winter and Reena Raggi were on the panel.

Koskoff, Koskoff & Bieder P.C. represented the plaintiffs here. K&L Gates LLP represented WWE.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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