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October 22, 1996

MARICE DORSEY, Plaintiff, against APPLE COMPUTERS, INC., Defendant

The opinion of the court was delivered by: WEINSTEIN


 Jack B. Weinstein, Senior District Judge:

 Plaintiff sues in diversity for repetitive stress injuries (RSI) allegedly caused by her use of a computer keyboard, "mouse," and other computer equipment manufactured by defendant. Relying on the New York statute of limitations, defendant moves for dismissal. It contends that the statute began to run when plaintiff first touched a computer keyboard in 1988. The motion must be denied.


 Plaintiff made some trivial use of computer keyboards and a computer mouse when employed part-time at Yale University in 1988; she had no symptoms or pain. Beginning in 1992 her job required her to use defendant's computer equipment intensively. Early in 1993 she first had severe pain in her right hand, wrist and elbow. Experts for both plaintiff and defendant agree that they can determine the approximate time that her tissues were sufficiently adversely affected to be characterized medically as "injured" or "diseased"--although they disagree as to the cause. The plaintiff's expert witnesses conclude that plaintiff's injury did not occur until January 1993, some two months before she experienced pain, and that the injury was due to her use of defendant's computer. She commenced this action less than a year and a half later on March 28, 1994. Defendant's experts conclude that her pain was the result of an earlier auto accident and had nothing to do with computer use.


 The three year New York statute of limitations "for a personal injury" begins to run at the time of the injury. See New York Civil Practice Law and Rules (CPLR) 203(a), 214(5). CPLR 203(a) explicitly provides that, in the absence of special circumstances, not present in this case, "The time within which an action must be commenced . . . should be computed from the time the cause of action accrued to the time the claim is interposed."

 A defendant bears the burden of establishing the affirmative defense of untimeliness. See CPLR 3018-b; Martin v. Edwards Labs., Div. of Am. Hosp., 60 N.Y.2d 417, 428, 457 N.E.2d 1150, 1156, 469 N.Y.S.2d 923, 929 (1983); 3 Harold L. Korn, Arthur R. Miller, et. al., New York Civil Practice P 3018.13 n.95 (1996).

 The New York Court of Appeals has not yet ruled on when the statute of limitations begins to run in RSI cases. Its view must be predicted. See, e.g., Findley v. Falise (In re Joint E. & S. Dist. Asbestos Litig.), 929 F. Supp. 1, 4 (E. & S.D.N.Y. 1996); Braune v. Abbott Labs., 895 F. Supp. 530, 542 (E.D.N.Y. 1995); In re E. & S. Dist. Asbestos Litig., 772 F. Supp. 1380, 1389 (E. & S.D.N.Y. 1991), rev'd in part on other grounds sub nom. In re Brooklyn Navy Yard Asbestos Litig. (Joint E. & S. Dist. Asbestos Litig.), 971 F.2d 831 (2d Cir. 1992).

The court's role under Erie is to predict, or more properly to ascertain, the decision that the state's highest court would reach today. The process is not prediction in its future-oriented sense, but rather in the sense that the court is guessing what another deciding body would do.

 Jed I. Bergman, Note, Putting Precedent in its Place: Stare Decisis and Federal Predictions of State Law, 96 Colum. L. Rev. 969, 970 n.3 (1996) (emphasis in original).

 The Appellate Division, Fourth Department, in applying the statute of limitations to RSI, comprehensively analyzed applicable case law. See Piper v. International Bus. Mach., 219 A.D.2d 56, 639 N.Y.S.2d 623 (4th Dep't 1996). Piper concluded that New York courts have developed "three distinct lines of cases addressing accrual in situations where, as here, the development of the condition for which compensation is sought is not immediately apparent to the injured plaintiff." 219 A.D.2d at 59, 639 N.Y.S.2d at 625. Summarizing Piper, the three lines and authorities supporting them are as follows:

 First, in cases involving latent injuries from exposure to substances, New York courts developed a rule in which the three year statute of limitations period began to run with the inhalation or injection of the substance, often long before the harm set in motion developed into a full-blown disease. See Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 300-01, 200 N.E. 824, 827 (1936). The New York legislature replaced this bright-line but harsh exposure rule with CPLR 214-c, a provision that directs the court to make a series of determinations based on the date of discovery of both the symptoms and the cause of injury and to consider possible delays in discovery related to developing scientific knowledge. See Braune v. Abbott Labs., 895 F. Supp. 530, 542-43 (E.D.N.Y. 1995).

 Second, in cases involving foreign objects accidentally left inside people's bodies, the New York Court of Appeals has held that the statutory period for medical malpractice actions begins to run when the patient reasonably could have discovered the malpractice. See Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 430-31, 248 N.E.2d 871, 872-73, 301 ...

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