COURT REJECTS RSI STATUTE OF LIMITATION APPEAL BY PLAINTIFFS

In a ruling rejecting key arguments by plaintiff attorneys, New York's Court of Appeals issued a long-awaited decision affecting hundreds of repetitive strain injury (RSI) cases. Plaintiffs in the case, Blanco v. AT&T et al, had argued that RSI injuries should be treated like toxic substance cases, which have extended statutes of limitations under special legislation. But the Court of Appeals concluded that the cause of action accrues "upon the onset of symptoms, or the last use of the keyboard, whichever is earlier." New York's normal statute of limitation for tort actions is three years. In RSI (or musculoskeletal disorders, as they are often now referred to by scientists) cases where the specific date of injury cannot be readily determined and where people can type for years without showing any symptoms of "injury," the question before the court was the point at which the three years would begin to run. Plaintiffs' lawyers originally appealed a decision by Supreme Court Justice Stephen Crane regarding orders he issued in 1994­95.

In most of these cases, Justice Crane granted defendants' motions to dismiss on the grounds of statute of limitation. The four-judge panel of the N.Y. Appellate Division, First Department, issued a unanimous ruling stating that the statute of limitation on RSI injuries runs three years from the date of first use of the keyboard, because the plaintiff lawyers' theory was that each contact with a keyboard produced an injurious microtrauma. This extended Justice Crane's decision, and generally went beyond what computer manufacturers had sought in the litigation. The plaintiffs then appealed this decision to New York's highest court.

Plaintiffs' argument before all of the courts was that RSI cases should be governed by a section of the N.Y. statute of limitations law (CPLR 214-c), enacted in 1986. This section extended the normal three-year statute of limitation in cases involving toxic substances. Under CPLR 214-c, the three years does not begin until the discovery of the injury, if the injury is caused by "latent effects of exposure to any substance or combination of substances, in any form, upon or within the body." Justice Crane ruled that this section and its exemptions are not applicable to RSI cases, and both the Appellate Division and the Court of Appeals agreed.

The Court of Appeals stated in its November 25, 1997, decision, "Obviously, a keyboard is not a toxic substance and therefore, CPLR 214-c is inapplicable." The court also rejected the plaintiffs' contention that an asserted continuing duty to warn may be applied to extend the limitations period. The court acknowledged that "RSI cases present new and different challenges in defining the accrual dates for plaintiffs' causes of action." In weighing the competing policy considerations the court concluded that the "proper rule in RSI cases is that the cause of action accrues against a given manufacturer upon the onset of symptoms or the last use of the injury producing device, whichever is earlier. Clearly in this case fairness to the plaintiff militates against a rule based on first use," the decision continues.

At the same time, the court specifically noted that its new rule was exactly what the manufacturers had urged upon the lower courts. The Appellate Division's ruling had surprised many defendants. The court also rejected plaintiffs' arguments that the limitation period should not commence until a diagnosis has been rendered, because that would allow plaintiffs to manipulate the statute of limitation.

The Center for Office Technology, in reporting the results of the decision, points out that researchers continue to disagree on the exact cause of many musculoskeletal disorders but the majority seem to agree that the most likely cause is a combination of factors, including job task, workstation design, health of the worker, and nonoccupational activities of the worker.

The Center for Office Technology is an association of employers and manufacturers dedicated to improving the office-working environment and promoting informed approaches to safety and health issues associated with computers and office technology. Its web site is www.cot.org. *