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Figure Four Weekly 12/7/2015: McDevitt comments on concussion lawsuits


A couple quick notes first to follow up on last week's issue after a nice discussion I had with long-time WWE outside counsel Jerry McDevitt. Being that I try not to make any illusions about being a layman covering this stuff, he wanted to make sure that I made a couple things more clear, and I'm happy to oblige:

* Procedurally speaking, the defense has to address everything outlined in the complaint as if it's true. It's entirely a theoretical argument, as outlined last week, but the defense has no real choice as to whether or not they have the option of giving the allegations any kind of credence.

* The plaintiff/wrestler side is arguing that the statute of repose his ongoing, not the statute of limitations. As defined in P. Stolz Family Partnership LP v. Daum: "Unlike a statute of limitations, a statute of repose is not a limitation of a plaintiff's remedy, but rather defines the right involved in terms of the time allowed to bring suit." This is a key section of what McDevitt wrote in his motion about the case that Konstantine Kyros is citing:

In support of the alleged continuing duty to warn, plaintiffs' counsel have typically cited only one case, Witt v. St. Vincent Med. Center, which is a medical malpractice case of no precedential value to this case, and ignored all other controlling law contradicting their position. In Witt, a pathologist failed to report to the plaintiff the totality of his original diagnosis following a biopsy on an enlarged lymph node. Originally, the pathologist reported a diagnosis that the plaintiff had an "atypical lymphoid hyperplasia." Years later, the pathologist wrote a note to an oncologist who was then treating the plaintiff for non-Hodgkins lymphoma. That note indicated that the pathologist held a concern that the plaintiff might be evolving a small lymphocytic lymphoma at the time he wrote the original diagnosis. The Connecticut Supreme Court noted that, "in the medical treatment context," omissions could support the continuing course of conduct exception to tolling, and ruled there was a factual issue as to whether that doctrine applied in light of the pathologist's ongoing failure to report to the plaintiff the totality of his original diagnosis.

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