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February 19, 1997


The opinion of the court was delivered by: MCCURN


 In these products liability and negligence actions, *fn1" plaintiff Debra C. Evans alleges that she suffered repetitive stress injuries ("RSI") from the use of keyboard equipment manufactured, sold and distributed by defendants. Plaintiff Mitchell B. Evans, Ms. Evans' husband, alleges separate causes of actions for loss of consortium. *fn2" The court maintains jurisdiction over these actions pursuant to 28 U.S.C. § 1332, diversity of citizenship.

 Presently before the court are defendants' motions for summary judgment pursuant to Fed. R. Civ. P. 56 dismissing plaintiffs' complaints as barred by the applicable statute of limitations. Plaintiffs oppose the motions of defendants Visual Technology Incorporated ("Visual Technology"), Ontel Corporation ("Ontel") and Lockheed Corporation a/k/a Delaware Lockheed ("Lockheed"), but do not oppose Key Tronic Corporation's ("Key Tronic") motion. On September 16, 1996, the court granted defendant Key Tronic's unopposed motion for summary judgment. On December 20, 1996, the court heard oral argument on the remaining motions and reserved decision. For the reasons set forth herein, the court now grants defendants Ontel's and Lockheed's motions for summary judgment and denies defendant Visual Technology's motion for summary judgment.


 As a federal court sitting in diversity, the court must apply the law of the forum state to determine the applicable statute of limitations. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 80, 58 S. Ct. 817, 823, 82 L. Ed. 1188 (1938); Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir. 1994). Here, the forum state is New York. Therefore, the court looks to New York law to determine the applicable statute of limitations. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99, 110, 65 S. Ct. 1464, 1470, 89 L. Ed. 2079 (1945).

 In New York, the statute of limitations for products liability and negligence actions is governed by sections 203(a) and 214(5) of the Civil Practice Law and Rules. N.Y. C. P. L. R. § 203(a) and § 214(5) (McKinney 1990). These sections provide that an action for personal injury must be commenced within three years "from the time the cause of action accrued." Id. ; see Snyder v. Town Insulation, Inc., 81 N.Y.2d 429, 432, 599 N.Y.S.2d 515, 516, 615 N.E.2d 999 (1993).

 The determination of accrual in an RSI case is presently unsettled under New York law. Compare Piper v. International Bus. Mach. Corp., 219 A.D.2d 56, 639 N.Y.S.2d 623 (4th Dep't 1996), and Coughlin v. International Bus. Mach. Corp., 225 A.D.2d 256, 650 N.Y.S.2d 477 (3d Dep't 1996), with Blanco v. American Tel. & Tel. Co., 223 A.D.2d 156, 646 N.Y.S.2d 99 (1st Dep't 1996). Therefore, it is this court's obligation to predict how the New York Court of Appeals would decide this issue if faced with the same question. See Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994). In predicting how the New York Court of Appeals would rule, the court may examine decisions of the lower New York courts. See In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 850 (2d Cir. 1992) ("Where the high court has not spoken, the best indicators of how it would decide are often the decisions of lower state courts."). The court, however, is not bound by such decisions, especially where the court determines that the high court would not adopt the rationale of such lower courts. See id. ("federal court is not bound by lower state court decisions") (citation omitted); Bank of New York, 35 F.3d at 650; Travelers, 14 F.3d at 119.

 An action accrues when a plaintiff can allege all of the legal elements that would allow her to seek redress for her injuries. See Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94, 595 N.Y.S.2d 931, 934, 612 N.E.2d 289 (1993) ("the Statute of Limitations does not run until there is a legal right to relief."). In other words, an action does not accrue until a plaintiff properly can allege all the elements of her cause of action. See id. ("accrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint."). Until that time, a plaintiff's cause of action cannot be said to accrue. See Snyder, 81 N.Y.2d at 432, 599 N.Y.S.2d at 516.

 As a general proposition, a cause of action sounding in tort "does not accrue until an injury is sustained." Snyder, 81 N.Y.2d at 432, 599 N.Y.S.2d at 516; see Kronos, 81 N.Y.2d at 92, 595 N.Y.S.2d at 932 ("Plaintiff had no cause of action, and the Statute of Limitations could not start to run, until plaintiff suffered injury."); Martin v. Edwards Laboratories, 60 N.Y.2d 417, 425, 469 N.Y.S.2d 923, 927, 457 N.E.2d 1150 (1983) ("'[A] cause of action accrues only when the forces wrongfully put in motion produce injury.'") (citation omitted). As the New York Court of Appeals long ago observed, "though negligence may endanger the person or property of another, no actionable wrong is committed if the danger is averted, . . . it is only the injury to person or property arising from negligence which constitutes the invasion of a personal right, protected by law, and, therefore, an actionable wrong." Schmidt v. Merchants Despatch Transp. Co., 270 N.Y. 287, 300, 200 N.E. 824 (1936). It is this date of injury, "rather than the wrongful act of defendant or discovery of the injury by plaintiff," that "is the relevant date for marking accrual." Kronos, 81 N.Y.2d at 94, 595 N.Y.S.2d at 934; see Schmidt, 270 N.Y. at 300 ("The statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury.").

 While these general principles are easily stated, their application can sometimes present difficulties for courts, especially in a case such as this where a plaintiff has no way of learning of the date of her injury or where the date of injury is difficult to ascertain. In the instant case, the issue with which the court is confronted-- when does a cause of action for an RSI case accrue-- is difficult because of the nature of the injuries suffered by the plaintiff. In RSI cases, unlike other cases where the date of injury is readily determinable, there is simply no precise way to determine the exact date of the injury. In the instant case, as a prerequisite to determining the date of accrual of these actions, the court must determine, as a matter of law, what is the date of injury in an RSI case. In this regard, the court is mindful that the injury is not to be confused with the disease or the ailment that results from the injury. See Snyder, 81 N.Y.2d at 434, 599 N.Y.S.2d at 517 ("Disease was a consequence of the injury, . . . not the injury itself"); Kronos, 81 N.Y.2d at 94, 595 N.Y.S.2d at 934; Schmidt, 270 N.Y. at 300.

 In determining the accrual date of a cause of action, New York courts attempt to strike a balance between fairness to a plaintiff to allow her reasonable time to pursue her claim with the fairness to defendants to respond to claims without inappropriate or prejudicial delays. See Martin, 60 N.Y.2d at 425, 469 N.Y.S.2d at 927 ("When limitations begin to run depends on a nice balancing of policy considerations") (citations and quotations omitted); Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 (1969) (Court departed from traditional malpractice rule and adopted a discovery rule because a fair assessment of the policy considerations dictated such a result).

 The court here is being asked to choose between competing positions advanced by the parties. At one end of the spectrum, plaintiff urges this court to adopt the date of medical diagnosis as the date of accrual. At the other end of the spectrum, defendants Ontel and Visual Technology vigorously urge this court to adopt the date of first use of an allegedly defective keyboard as the date of accrual. As will be discussed, the court declines to adopt either position advanced by these parties because the court is unpersuaded that the New York Court of Appeals will adopt either of them. Rather, the court will adopt a comprise position advanced by several lower New York courts which, under the unique facts of RSI cases, adequately affords a plaintiff the reasonable opportunity to assert her claim without undue prejudice or delay to defendants.

 In support of her position, plaintiff maintains that because her particular RSI injury, carpal tunnel syndrome, is a continuous and medically diagnosable condition, "it cannot be said that a plaintiff has sustained any injury until a medical doctor has made a determination that carpal tunnel syndrome exists." Plaintiffs' Memorandum of Law at 7. Plaintiff further asserts that since her carpal tunnel syndrome in her left hand was not diagnosed until after July 29, 1988, defendant Visual Technology's motion should be denied. Additionally, plaintiff asserts that since her carpel tunnel syndrome in her right ...

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