WESLEY THORN, ET AL. v IBM
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No. 96-1154
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Wesley G. Thorn; Cheri Thorn, *
*
Plaintiff/Appellants, *
*
v. *
*
International Business * Appeal from the United States
Machines, Inc., * District Court for the Western
* District of Missouri.
Defendant/Appellee, *
*
Honeywell, Inc., *
*
Defendant. *
Submitted: September 11, 1996
Filed: November 22, 1996
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Before BEAM, HEANEY, and MURPHY, Circuit Judges.
___________
BEAM, Circuit Judge.
This products liability action requires us to decide the
appropriate statute of limitations governing a repetitive stress
injury claim originally filed in New York and transferred to
Missouri. For the reasons discussed below, we find that New York's
three-year limitations period applies and that the claims are time-
barred. We therefore affirm the district court's(1) grant of summary
judgment.
I. BACKGROUND
Wesley Thorn worked for the State of Missouri for eight years.
During that time he typed on various International Business
Machines (IBM) computer keyboards. Wesley testified at his
deposition and through interrogatories that he first experienced
discomfort in his arms in August of 1988. The symptoms became more
persistent and intense, until Wesley was diagnosed with repetitive
stress injuries (RSI) in 1992.
The Thorns filed this diversity suit in New York on January
29, 1993, seeking compensation for Wesley's injuries and Cheri's
loss of consortium.(2) On motion of IBM, the Thorns' action was
transferred to the United States District Court for the Western
District of Missouri. See 28 U.S.C. SS 1404(a). After much
discovery, IBM moved for summary judgment on the ground that the
Thorns' claims were time-barred.(3) The district court granted that
motion. The Thorns appeal.
II. DISCUSSION
We review the district court's grant of summary judgment de
novo, applying the same standard as the district court and
examining the record in the light most favorable to the nonmoving
party. Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 258 (8th Cir.
1996). Summary judgment is appropriate when the record reveals
that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Disesa v. St.
Louis Community College, 79 F.3d 92, 94 (8th Cir. 1996).
A. Choice of Law
The statute of limitations from the transferor court governs
diversity cases transferred to another federal venue. "[T]he
transferee district court must . . . apply the state law that would
have been applied if there had been no change of venue." Van Dusen
v. Barrack,
376 U.S. 612, 639
(1963). This rule applies regardless
of which party initiated the change in venue. Ferens v. John Deere
Co.,
494 U.S. 516, 524-25
(1990). Thus, Van Dusen mandates
application of New York law in this case.
The Thorns concede this general rule, but claim that IBM is
estopped from asserting New York's limitations period. They rely
on footnote number 27 in Van Dusen in which the Court explains
previous trial court practice. Van Dusen,
376 U.S. at 631
. This
observation does not constitute a directive to lower courts. The
Thorns also rely on Greve v. Gibraltar Enter., Inc., 85 F. Supp.
410 (D.N.M. 1949). The 1949 Greve decision precedes and is
inconsistent with both Van Dusen and Ferens and is therefore
unreliable precedent. We find no other support for the Thorns'
position. See Benne v. IBM, 87 F.3d 419, 424 (10th Cir. 1996)
(refusing to apply estoppel approach in similar circumstances).
Furthermore, the facts of this case do not evoke estoppel
principles. The Thorns point out that IBM argued in its transfer
motion that the case should be decided under Missouri substantive
law. However, that does not imply a promise not to use traditional
conflict of law principles to apply transferor state procedural
rules. The Thorns do not argue any detrimental reliance on a
belief that Missouri law would govern the case upon transfer.
Finally, it was the Thorns, not IBM who chose to file their claim
in New York. They should not now be heard to complain about
application of the law of the forum they themselves chose. The
Thorns' claim must, therefore, be analyzed under New York law.
B. New York's Statute of Limitations
New York's borrowing statute supplies the limitations rule for
injuries occurring outside the state. N.Y. C.P.L.R. 202 (McKinney
1990). That statute requires the Thorns' claims to be timely filed
under both New York and Missouri law. Id. IBM concedes that the
Thorns' claims were filed within Missouri's statutory period, so
only the New York statute is at issue here.
Under New York law, actions for personal injuries must be
commenced within three years of the accrual of the cause of action.
N.Y. C.P.L.R. 214(5) (McKinney 1990). In most cases, a cause of
action accrues on the date of the injury. See Snyder v. Town
Insulation, 615 N.E.2d 999, 1000 (N.Y. 1993). However, a special
"discovery rule" applies to injuries caused by "latent effects of
exposure to any substance or combination of substances, in any
form, upon or within the body." N.Y. C.P.L.R. 214-c (2) (McKinney
1990). For injuries covered by 214-c, the limitations period does
not begin to run until the injury is discovered. Id. The Thorns
assert that their injuries fall within the discovery rule.
In Wallen v. American Tel. & Tel. Co., Index No. 12336/91
(N.Y. Sup. Ct. 1992), aff'd, 601 N.Y.S.2d 796 (N.Y. App.), leave to
appeal denied, 625 N.E.2d 590 (1993), the court refused to apply
214-c to RSI cases. New York state courts have followed Wallen.
Blanco v. American Tel. & Tel. Co., 646 N.Y.S.2d 99 (N.Y. App.
1996). Computer keyboards are not a "substance" within the ambit
of 214-c:
Simply put, a keyboard is not a substance, toxic or
otherwise. Plaintiffs' injuries were allegedly incurred
by direct contact with a tangible object, not a
substance, and the term `substance' was no more meant to
encompass a piece of office equipment than it was meant
to include any other ordinary product.
Id. at 102.
Much of the Thorns' position rests on criticism of Wallen and
its progeny. They argue that Wallen was ill-conceived and
speculate that New York's highest court could reject Wallen when it
considers the RSI issue. However, the Thorns' dissatisfaction with
Wallen does nothing to lessen its force as New York precedent. The
Wallen decision is the law of New York, and other state courts
applying New York law are bound by it. See, e.g., Johansen v.
Honeywell, Inc., 642 N.Y.S.2d 459, 460 (N.Y. Sup. Ct. 1994) ("[I]t
is no longer open to this court . . . to entertain plaintiffs'
criticisms of the Wallen decision. [Its] reasoning is binding on
me.").
Although federal courts are not bound to follow the decisions
of intermediate state courts when interpreting state law, their
decisions are highly persuasive and should be followed when they
are the best evidence of state law. B.B. v. Continental Ins. Co.,
8 F.3d 1288, 1291 (8th Cir. 1993). New York courts have uniformly
held that RSI claims cannot be brought under 214-c and the Thorns
have not persuaded us that these decisions do not represent the law
of New York. Furthermore, other federal courts sitting in
diversity have concluded that 214-c does not apply to RSI cases.
E.g., Harrison v. Olivetti Office USA, Inc., 1996 WL 529175 at *2
(D.D.C. 1996) (noting that the District of Columbia's federal
district courts have refused to apply 214-c to RSI litigation
transferred from New York). We conclude that the "discovery rule"
of 214-c does not apply to the Thorns' RSI claims.
C. Accrual of the Cause of Action
The next step in statute of limitations analysis is to
determine when the cause of action accrued. In New York "an injury
is deemed to have occurred for statute of limitations purposes no
later than the time that the injurious process first manifests
itself." Wallen, slip op. at 2. Most recently, a New York federal
district court held that a plaintiff's RSI cause of action had
accrued shortly before she began experiencing painful symptoms.
Dorsey v. Apple Computers, Inc., 936 F. Supp. 89, 90 (E.D.N.Y.
1996). In Dorsey, Judge Weinstein first observed that "New York
courts attempt to strike a balance between the needs of plaintiffs
in pursuing a claim, and the needs of defendants in responding
without inappropriate delays. . . . [T]he length of time that a
plaintiff should have to assert his claim depends on a nice
balancing of policy considerations." Id. at 91 (citations and
quotations omitted). Judge Weinstein concluded that under such a
balancing approach "`accrual occurs when the claim becomes
enforceable, i.e., when all elements of the tort can be truthfully
alleged in a complaint.'" Id. at 92 (quoting Kronos, Inc. v. AVX
Corp., 612 N.E.2d 289, 292 (N.Y. 1993)).
The Wallen approach has been reaffirmed by New York appellate
courts:
In our view, the accrual rule articulated in Wallen [is
the appropriate one.] [I]f a date of first exposure rule
applied in cases of repetitive stress injury, a cause of
action might be barred before liability arose. At the
same time, under a rule delaying accrual until last use
of the product or actual awareness of the nature of the
injury, a plaintiff would have the power to put off the
running of the Statute of Limitations indefinitely.
Fixing the date of injury at the first onset of symptoms
deprives plaintiff of that power, but not of a reasonable
opportunity to bring her action.
Piper v. IBM, 639 N.Y.S.2d 623, 626-27 (N.Y. App. 1996) (citations
omitted).
The uncontradicted evidence indicates that Wesley Thorn's
"first onset of symptoms" occurred in 1988. Id. at 27. Wesley
testified that in August of 1988, "I was first starting to get some
inkling of symptoms." Jt. App. at 101. In 1988 he began
experiencing "tiredness" in his upper arms and shoulders. He had
difficulty sleeping because of pain and discomfort in his upper
extremities. He began waking up because of tingling in his hands
and fingers. He noticed he was losing his hand strength. He began
to experience numbness in both hands. All of these symptoms
manifested themselves in 1988. Taken together these sensations
amount, as a matter of law, to the "first onset of symptoms" that
served to start the running of the New York statute of limitations.
Piper, 639 N.Y.S.2d at 627.
The Thorns argue that even if Wesley's original injury is
time-barred, they suffered other harms within the limitations
period. Under New York law, when a plaintiff is first injured
prior to the three-year statutory period but alleges qualitatively
different injuries occurring within the statutory period, he or she
may sustain claims based on the later harm. Id. In Piper, the
court granted summary judgment with respect to claims based on
injuries to the plaintiff's right hand, but not her left. The
plaintiff submitted expert medical proof that all RSI sustained in
her left hand was unrelated to the RSI in her right hand, along
with an affidavit that she experienced no symptoms in her left hand
before the limitations period. Id. The court held that the
plaintiff had suffered two separate harms, only one of which was
untimely. Id.
The Thorns allege that they suffered distinct injuries that
occurred within the limitations period. However, unlike the
plaintiff in Piper, they provide no evidence to support that claim.
The only proof of such injuries are conclusory statements advanced
by counsel, coupled with reference to an affidavit submitted by a
medical doctor. That affidavit states that "initial symptoms [of
RSI] may relate to discrete causes or injuries different from those
symptoms which present later. Clinical judgments on a case-by-
case basis are required to relate particular symptoms to particular
injuries." Jt. App. at 171 (emphasis added). Significantly, the
affidavit does not indicate that the affiant examined Wesley or his
medical records. The Thorns have not come forward with any
evidence specifically linking discrete injuries to keyboards used
within the limitations period. Wesley's RSI claim accrued in 1988
and in order to recover for that injury and all of its
consequences, he had to file his claim within three years. He did
not file in time so summary judgment was proper.
It follows that the derivative claims of Cheri Thorn must also
fail. "The required dismissal of plaintiff's action for
untimeliness also requires dismissal of the husband's derivative
action, which depends on the same claims . . . . " Cody v. Village
of Lake George, 576 N.Y.S.2d 912, 913 (N.Y. App. 1991).
III. CONCLUSION
The district court correctly determined that the claims of
Wesley and Cheri Thorn are time-barred. Therefore, we affirm the
judgment of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(1)
1The Honorable Dean Whipple, United States District Judge for
the Western District of Missouri.
(2)
2The Thorns' case was originally consolidated with other
pending keyboard product liability actions. The consolidation
orders were subsequently vacated. See In re Repetitive Stress
Injury Litigation, 11 F.3d 368 (2d Cir. 1993).
(3)
3Pursuant to a joint motion of the parties, the district court
had earlier dismissed the action against Honeywell, Inc.