and Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 657 N.E.2d 1301, 634 N.Y.S.2d 18 (N.Y. 1995) (relating to the inhalation of asbestos), and citing Schmidt, held that injuries from repetitive motions were not distinguishable from injuries caused by repeated and long-term exposure to hazardous substances. Blanco, supra, at 104. The court therefore held that each plaintiff's cause of action accrued upon the commencement of their use of the allegedly defective keyboard, notwithstanding the fact that the injury did not manifest itself until a later time. Blanco, supra, at 104. The actions were dismissed as time-barred.
In contrast, in Piper v. International Business Machines, 219 A.D.2d 56, 639 N.Y.S.2d 623 (App. Div. 4th Dep't. 1996), the Appellate Division, Fourth Department, held that the three year limitations period applicable to a worker's action against a computer keyboard manufacturer commenced to run when she first experienced symptoms of the injury, rather than on the date of first use of the keyboard. In Piper, the court rejected the Schmidt rule, holding that under that rule, "a cause of action might be barred before liability arose." Piper, supra, at 626-27. Instead, the court followed the reasoning espoused in an unreported case, Wallen v. American Tel. & Tel. Co., Sup. Ct. Bronx Cty, Sept. 17, 1992, Saks, J. index no. 12336/91, aff'd, 601 N.Y.S.2d 796, lv. denied, 625 N.E.2d 590 (N.Y. 1993) where the accrual date was measured from the earlier of two dates: either the plaintiff's last use of the computer equipment, or the onset of the plaintiff's symptoms. Piper, supra, at 626. The court distinguished the case from the toxic tort exposure cases, noting that the case did not present a situation where "the forces of harm [were] inexorably set in motion" when the plaintiff was first exposed to the injury-causing product. Id. Rather, setting the accrual date at the time of onset of the symptoms reflected a policy which permitted a plaintiff to not be unreasonably denied an opportunity to bring a claim, while at the same time, not giving a plaintiff the power to put off the running of the statute of limitations indefinitely until such time as the action nature of the injury was discovered. Id.
In Dorsey v. Apple Computers, 936 F. Supp. 89 (E.D.N.Y. 1996), the court followed the reasoning of Piper, and specifically stated that the holding in Blanco "cannot be accepted as an accurate statement of New York law." Dorsey, supra, at 92. The court stated that "there is a distinction in the cases between external substances that have somehow been absorbed or integrated into a person's body and those that have not." Id. Citing Martin, the court stated that "where a foreign item has not been assimilated," and the courts have been able to fix a date of harm, the New York courts use that identifiable date of injury as the beginning of the statutory accrual period. Id. In constrast, where the external substance has been integrated into a person's body, New York courts have found the date of the onset of symptoms to be the "closest approximation [they] could reasonably make to the date of injury." Id. Thus, in Dorsey, the court held that, based on plaintiff's allegations, the action was most likely not time-barred as the symptoms of plaintiff's injuries appeared to have occurred no earlier than thirteen months prior to the filing of her suit. Dorsey, supra, at 92-93.
Later, in Geressy v. Digital Equipment Corp., 980 F. Supp. 640, 1997 WL 297679 at *6 (E.D.N.Y. 1997), ruling on a complaint filed in March, 1994, the court, ruling on post-trial motions, applied the rationale espoused in Piper and Dorsey, and held that causes of action were not viable on statute of limitations grounds for injuries where symptoms were first noticed prior to March, 1991. See also Evans v. Visual Technology Incorporated, 953 F. Supp. 453 (N.D.N.Y. 1997) (following rule that statute of limitations period commences upon onset of first symptoms); Coughlin v. International Business Machines, 225 A.D.2d 256, 650 N.Y.S.2d 477 (App. Div. 3rd Dep't. 1996) (same).
Analyzing the cases, this court finds that the exposure cases cited in the Blanco decision are distinguishable. In the referenced cases, each of the offending substances was one in which common knowledge available at the time showed that the particular substance by its very nature was hazardous to the human body, i.e., silicone dust, asbestos and ureaformaldehyde fumes from insulation. Thus, the inhalation of these substances were harmful to the human body, creating an acute or physical injury however small the first time they were inhaled. The same cannot be said of injuries alleged to be caused by use of computer keyboards or other similar devices. Such injuries, if they even actually exist, are only the result of repetitive use of the device at issue. Lawrence Chesler, Repetitive Motion Injury and Cumulative Trauma Disorder, N.Y.S. BAR JOURNAL, December, 1993, at 12 ("repetitive motion injury, also known as cumulative trauma disorder (CTD) or repetitive strain injury (RSI) is now the leading cause of occupational illness in the United States"). RSI and CTD are "umbrella terms" which refer to any painful condition of the neck, shoulder, arm or hand in workers who engage in repetitive physical duties. Id. If repeated use of a computer keyboard or other device alleged to be defective is required before any injury can be detected, it follows that such injury, by its nature, does not occur upon first use by a plaintiff. The distinction between the date of injury as formulated by the New York Court of Appeals and the date on which the injury is diagnosable was recognized in Piper, which applied a test of the date of "first onset of symptoms" as the date of first injury under the New York general accrual rule. Piper, supra, at 626. This court agrees with that distinction. As stated in Schmidt, "judicial decision cannot be based soundly upon dialectical distinctions or rigid application of purely formal concepts." Schmidt, supra, at 826. In cases involving the use of allegedly defective equipment alleged to cause injury through repetitive use or contact, such as the computer keyboard at issue in the instant case, the date of accrual cannot be the date of first use or exposure, as there is no objective reason to believe that harm to the human body could conceivably occur at that time. The injury, if it is actionable at all, must necessarily occur at a later time. That date must be determined by reference to a plaintiff's pleadings, medical records, and other testimony showing the first onset of symptoms. Such a test of accrual is not dependent upon medical testimony, but turns on other evidence, specifically the plaintiff's own complaints of symptoms. Accordingly, a date of onset of first symptoms or the last date of use test for cases of the kind at bar does not violate the Court of Appeals' disapproval of a "fact-based date of medical injury test," as rejected in Consorti, supra, at 1302.
In the instant case, Antholzner claims that she first experienced symptoms of repetitive stress injuries in December, 1991 and that she was diagnosed as having bilateral carpal tunnel syndrome in September, 1993. This action was filed on February 7, 1994, within the three year statute of limitations period which commenced in December, 1991, the date of first onset of Antholzner's symptoms. As such, Defendants' motions for summary judgment on the ground that the action is barred by the statute of limitations period is must be DENIED. At trial, Antholzner will present evidence to the trier of fact to establish the date of first onset of her symptoms as occurring in December, 1991. Only if Defendants can persuade the trier of fact that Antholzner's symptoms first occurred more than three years prior to the commencement of this action, will they succeed with their statute of limitations defense. Dorsey, supra, at 92.
Defendants' motions for summary judgment (Docket Nos. 14, 17, and 20) should be DENIED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: September 12, 1997
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiffs and the Defendants.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: September 12th, 1997
Buffalo, New York