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GERESSY v. DIGITAL EQUIP. CORP.

September 16, 1997

PATRICIA GERESSY and PATRICIA GERESSY AS ADMINISTRATRIX OF THE ESTATE OF THOMAS A. GERESSY, JEANNETTE ROTOLO and JOHN WILLIAM ROTOLO, and JILL M. JACKSON and THOMAS M. FARRELL, Plaintiffs, against DIGITAL EQUIPMENT CORPORATION, Defendant.


The opinion of the court was delivered by: WEINSTEIN

 I. INTRODUCTION

 II. FACTS

 
A. Patricia Geressy
 
B. Jill M. Jackson
 
C. Jeannette Rotolo

 III. LAW AND ITS APPLICATION

 A. Federal Rules On Setting Aside Verdicts

 
1. Law
 
2. Application of Law to Facts
 
a. Due Diligence Prior to and During Trial
 
b. Existence at Time of Trial
 
c. Non-Cumulative Evidence
 
d. Witness Credibility
 
e. Admissibility and Materiality
 
f. Substantial Probability of a Change in the Outcome at Trial

 B. Experts

 C. Warnings

 
1. Law
 
2. Application of Law to Facts

 D. Statute of Limitations

 
1. Law
 
2. Application of Law to Facts
 
a. Patricia Geressy
 
b. Jill M. Jackson
 
c. Thomas M. Farrell
 
d. Jeannette Rotolo

 E. Injury to Spouse Prior to Marriage

 
1. Law
 
2. Application of the Law to the Facts

 F. Deviation of Verdict

 
1. Law
 
a. Identifying the Normative Group for Comparison
 
b. Deviation from the "Normal" Group
 
c. Defining Material Deviation
 
d. Burden of Proof
 
2. Application of Law to Facts
 
a. Patricia Geressy
 
b. Jill M. Jackson
 
c. Jeanette Rotolo

 IV. CONCLUSION

 APPENDIX A

 
COMPARABLE CASES CONSIDERED

 Appendix B

 
Patricia Geressy: Tentative Computations

 Appendix C

 
Jill M. Jackson: Tentative Computations

 Appendix D

 
Jeanette Rotolo: Tentative Computations .

 Plaintiffs Geressy, Jackson and Rotolo claimed that use of Digital's LK201 computer keyboard caused repetitive stress injuries (RSI) in suits commenced on March 16, 1994. Their husbands alleged loss of consortium. The jury returned a verdict in favor of all plaintiffs on failure to warn claims, rejecting negligent design claims and declining to award punitive damages.

 Defendant moved in all cases for judgment as a matter of law, a new trial and remittitur. More recently defendant sought a new trial on the Geressys' claims based on newly discovered evidence.

 For the reasons indicated below, viewing the evidence most favorably to support the verdicts, only that for Jeannette Rotolo can stand. Newly discovered evidence requires a new trial on the claims of Patricia Geressy and the estate of Thomas A. Geressy. The claims of John William Rotolo are dismissed since, having been married after his wife was injured, he suffered no loss of consortium. Those of Jill M. Jackson and her husband, Thomas A. Farrell, are dismissed on statute of limitations grounds.

 II. FACTS

 A. Patricia Geressy

 Ms. Geressy worked as a secretary at the Port Authority for five years in the 1960s and again from 1984 until the present. She used defendant's keyboard and did other secretarial work. She had never been told that use of the keyboard might cause RSI.

 She testified that the first manifestation of her condition "was [in] the summer of 1991. I started waking up at night with numbness, tingling in my hands, burning in my wrists. I didn't think much of it at the time."

 Initially, Ms. Geressy's most severe problems were with her left wrist and hand. She underwent surgery for that wrist and hand in December of 1991. Because her first surgery was not successful, Ms. Geressy had a second operation in May of 1992. The second operation also gave no relief. She then started to experience pain in her right wrist and hand, her neck, and her shoulders. By the time the failure of her first two operations was known, the problems throughout her upper extremities had intensified. A third operation, on her neck, was recommended and eventually performed. By the end of 1994 her then treating doctor recommended surgery for her right hand.

 After four operations and other therapy, Ms. Geressy's condition has continued to deteriorate. She has very little use of either hand.

 Plaintiffs' experts testified that these problems were due to use of defendant's keyboard which presented ergonomic dangers requiring warnings to the user. Defendant's experts testified to the contrary, attributing plaintiff's physical symptoms to natural causes, finding no keyboard dangers, and no need to warn.

 B. Jill M. Jackson

 In the 1980s Ms. Jackson worked intensively at one of defendant's computers without warnings of dangers. Some time around Christmas of 1989 she experienced "a pinching pain in [her] left elbow one day at work." She was treated with cortisone. She had elbow pain again a few months later in 1990 and sought the advice of another doctor. In filling out preliminary medical forms, she included in her complaints "lower back pain, right hip pain after sitting," and pain in the "upper right back shoulder area."

 From 1990 on she has experienced debilitating pain in her elbows, forearms and hands, as well as a severe loss of strength in her upper extremities. In 1994 her disabilities forced her to leave her position as a legal secretary and to begin training in a new field.

 C. Jeannette Rotolo

 Ms. Rotolo--married on May 15, 1993--has a short history of poor health. Until the onset of RSI, she was a "very athletic person," involved in such sports as karate and horseback riding. In April of 1993, Ms. Rotolo, a secretary using defendant's keyboard, first experienced symptoms of RSI. At work, she began to notice that her hands were "cold and stiff" and that she made an undue number of mistakes in typing. By June she began dropping things. Eventually the pain become constant.

 In the years since her first symptoms, Ms. Rotolo has been diagnosed with a variety of specific RSIs. She has tried numerous treatments, from physical therapy to surgery on her wrists and hands. Since September of 1993, Ms. Rotolo has not been able to return to clerical work, although she has been able to do some lower-paid child care work that does not exacerbate her condition.

 III. LAW AND ITS APPLICATION

 This is a diversity action governed by federal procedural law and the substantive law of New York state. See, e.g., Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 135 L. Ed. 2d 659, 116 S. Ct. 2211 (1996).

 A. Federal Rules On Setting Aside Verdicts

 
1. Law

 In deciding Rule 50(b) motions for judgment as a matter of law the evidence is viewed most favorably to the party defending the jury's verdict.

 
In ruling on a motion for judgment as a matter of law under Fed. R. Civ. P. 50(b) . . . a district court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence. The court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury. . . . Only if there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against [the moving party] may the court properly grant the motion.

 LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir. 1995), cert. denied sub nom., Village of Airmont, NY. v. LeBlanc-Sternberg, U.S. , 135 L. Ed. 2d 1067, 116 S. Ct. 2546 (1996) (citations omitted) (internal quotation marks omitted).

 Motions for a new trial under Rule 59(a) give the trial court more leeway. The rule provides:

 
A new trial may be granted to all or any of the parties on all or part of the issues in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States. . . .

 Fed. R. Civ. P. 59(a). See, e.g., Holzapfel v. Town of Newburgh, N.Y., 950 F. Supp. 1267, 1272 (S.D.N.Y. 1997) ("a less stringent standard applies to a motion for a new trial than to a motion for judgment as a matter of law") (citations omitted). In contrast to the standard for judgment as a matter of law, "a new trial may be granted even if there is substantial evidence to support the jury's verdict. . . . [A] trial judge hearing a motion for a new trial 'is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner.'" Song v. Ives Labs., 957 F.2d 1041, 1047 (2d Cir 1992).

 When the motion pursuant to Rule 59 for a new trial is based on newly discovered evidence, the criteria for granting has been stated as:

 
(1) the evidence was newly discovered since the trial, (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence could not be merely cumulative or impeaching; (4) the newly discovered evidence was material; and (5) that a new trial, with ...

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