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IN RE EASTERN DIST. REPETITIVE STRESS INJURY LITIG

April 20, 1994

IN RE: EASTERN DISTRICT REPETITIVE STRESS INJURY LITIGATION. This Memorandum Relates to: 92-CV-2221; 92-CV-2223; 92-CV-2229; 92-CV-2233; 92-CV-2235; 92-CV-2236; 92-CV-2583; 92-CV-2590; 92-CV-2770; 92-CV-2772; 92-CV-2774; 92-CV-2775; 92-CV-2776; 92-CV-2824; 92-CV-2825; 92-CV-2826; 92-CV-2827; 92-CV-2828; 92-CV-2911; 92-CV-2924; 92-CV-2925; 92-CV-2941; 92-CV-2942; 92-CV-2943; 92-CV-3007; 92-CV-3008; 92-CV-3009; 92-CV-3105; 92-CV-3126; 92-CV-3397; 92-CV-3516; 92-CV-3554; 92-CV-3967; 92-CV-3994; 92-CV-4028; 92-CV-4063; 92-CV-4176; 92-CV-4291; 92-CV-4308; 92-CV-4311; 92-CV-4312; 92-CV-4327; 92-CV-4617; 92-CV-4697; 92-CV-4700; 92-CV-4784; 92-CV-4785; 92-CV-4917; 92-CV-5226; 92-CV-5228; 92-CV-5259; 92-CV-5441; 92-CV-5504; 92-CV-5630; 92-CV-5946; 92-CV-6087; 92-CV-6089; 93-CV-0283; 93-CV-0366; 93-CV-0400; 93-CV-0425; 93-CV-0427; 93-CV-0532; 93-CV-0556; 93-CV-0698; 93-CV-0854; 93-CV-0919; 93-CV-1088; 93-CV-1303; 93-CV-1318; 93-CV-1321; 93-CV-1354; 93-CV-1497; 93-CV-1507; 93-CV-1523; 93-CV-1524; 93-CV-1541; 93-CV-1781


The opinion of the court was delivered by: DENIS R. HURLEY, U.S.D.J.

 HURLEY, District Judge

 Defendants seek to transfer all or part of 78 cases in which plaintiffs allege repetitive stress injuries to the districts around the United States in which plaintiffs' claims arose. Defendants also seek severance of individual plaintiffs' claims to the extent necessary to effectuate transfer.

 As of the date of this decision, over 450 repetitive stress injury ("RSI") cases have been filed in the Eastern District of New York on behalf of over 1,000 plaintiffs against over 100 different equipment manufacturers. In each of these cases, plaintiffs allege that they suffer from one or more of a plethora of soft tissue and other disorders including "carpal tunnel" syndrome, tendinitis, epicondylitis (commonly known as "tennis elbow"), degenerative disc disease, cervical sprain, neck pain and back pain. Plaintiffs claim that their injuries were caused by the repetitive stress involved in the use of keyboards, postal machines, video display terminals, cash registers, stenographic machines, supermarket scanners and numerous and diverse other devices designed, manufactured, and in some cases distributed, by defendants. Defendants respond that plaintiffs' injuries, if any, were caused by factors other than use of their products, such as workplace conditions, work habits, habits outside the workplace, prior traumas, and other medical conditions.

 By orders dated June 2, 1992 and July 14, 1992, all RSI cases in the Eastern District of New York were consolidated before this court. Thereafter, Messrs. Phillips and Ponterio, as the attorneys for plaintiffs in the 119 cases then pending in the Eastern District of New York, moved pursuant to 28 U.S.C. § 1407, for an order transferring 40 RSI cases in other federal courts to this district for "coordinated or consolidated pretrial proceedings." That application was denied by the Judicial Panel on Multidistrict Litigation, by order filed on November 27, 1992, as the Panel was "not persuaded . . . that the degree of common questions of fact among these actions rises to the level that transfer under Section 1407 would best serve the overall convenience of the parties and witnesses and promote the just and efficient conduct of this entire litigation."

 While plaintiffs were unsuccessfully seeking multi-district consolidation, defendants were pursuing an appeal of the consolidation orders within this district. By decision dated December 9, 1993, In re Repetitive Stress Injury Litigation, 11 F.3d 368 (2d Cir. 1993), the Second Circuit vacated the two consolidation orders, concluding that their issuance constituted an "abuse of discretion" because

 
at this stage of the litigation, the sole common fact among these cases is a claim of injury of such generality that it covers a number of different ailments for each of which there are numerous possible causes other than the tortious conduct of one of the defendants. As a class, the plaintiffs presumably have the usual wide variety of individual health conditions and problems that are found in any similar sample of persons and that might be relevant to the claimed injuries. The defendants manufacture or distribute a variety of mechanical devices with differing propensities, if any, to cause the harm alleged. With regard to the issues of law, the plaintiffs come from a variety of jurisdictions and rely for their claims on the laws of different states. An order that merges all discovery and court proceedings and requires the participation of all counsel simply has no basis in Rule 42.

 11 F.3d at 373.

 Defendants' motions to transfer venue were made while their appeal to the Second Circuit of the consolidation orders was pending. Accordingly, those motions have been held in abeyance awaiting a decision, and guidance, from the appellate court. Now in receipt of both, and for the reasons stated below and in orders entered this date in each individual case, defendants' motions are granted in 75 cases and denied in three cases whose particular facts justify retention by this court.

 DISCUSSION

 I. Transfer of Venue

 A federal district court may transfer a civil action "to any other district or division where it might have been brought" when transfer will serve "the convenience of parties and witnesses" or furthers "the interest of justice." 28 U.S.C. § 1404(a).

 On a motion to transfer, the movant bears the burden of establishing that the motion should be granted. Factors Etc., Inc. v. Pro Arts Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979).

 Defendants must establish both (1) that the actions could have been brought in the proposed transferee districts and (2) that transfer serves the convenience of parties and ...


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