87 F.3d 419 (10th Cir. 1996), 95-3026, Benne v. International Business Machines Corp.

Docket Nº:95-3026.
Citation:87 F.3d 419
Party Name:Catherine Ann BENNE, Plaintiff-Appellant, v. INTERNATIONAL BUSINESS MACHINES CORP. and Gateway 2000, Inc., Defendants-Appellees.
Case Date:June 20, 1996
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 419

87 F.3d 419 (10th Cir. 1996)

Catherine Ann BENNE, Plaintiff-Appellant,



Inc., Defendants-Appellees.

No. 95-3026.

United States Court of Appeals, Tenth Circuit

June 20, 1996

Page 420

[Copyrighted Material Omitted]

Page 421

Kenneth E. Meiser of Szaferman, Lakind, Blumstein, Watter & Blader, P.C., Lawrenceville, New Jersey (Arnold C. Lakind of Szaferman, Lakind, Blumstein, Watter & Blader, P.C., Lawrenceville, New Jersey, and Albert L. Kamas of Render, Kamas & Hammond, Wichita, Kansas, with him on the brief) for Plaintiff-Appellant.

Gerald Sawatzky of Foulston & Seifkin, Wichita, Kansas (Trisha A. Thelen and Jeff P. DeGraffenreid of Foulston & Seifkin, Wichita, Kansas, James F. Duncan, Katherine J. Rodgers and Kristine S. Focht of Watson & Marshall, L.C., Kansas City, Missouri, Josesph A. D'Avanzo and Maria J. Morreale of Cerussi and Spring, White Plains, New York, with him on the brief) for Defendants-Appellees.

Before ANDERSON, McKAY, and JONES, [*] Circuit Judges.

Page 422

NATHANIEL R. JONES, Senior Circuit Judge.

Plaintiff Catherine Benne appeals the entry of summary judgment for Defendants International Business Machines (IBM) and Gateway 2000 (Gateway) in her diversity personal injury action. Concluding that Benne had filed her claims past the period allowed by the appropriate state statutes of limitations, the district court granted summary judgment for Defendants. For the following reasons we affirm the judgment of the district court.


From 1979 to 1992, Benne was employed in Kansas as a secretary and x-ray technician for an orthopaedic physician, Dr. Ernest Schlachter. Between fifty and sixty percent of Benne's time was spent typing on either an IBM typewriter keyboard or a Gateway computer keyboard. As a result of typing extensively over this thirteen year period on keyboards manufactured by IBM and Gateway, Benne developed carpal tunnel syndrome and overuse syndrome.

In 1984 Benne developed numbness, tingling, and swelling in her hands. Dr. Schlachter examined Benne and referred her to a specialist. Dr. Schlachter subsequently filed a report with the Kansas Division of Workers' Compensation that indicated he was retaining Benne as an employee despite knowing that she suffered from "overuse syndrome of both arms." Appendix at 157. In 1985, Schlachter filed an Employer's Report of Accident with the Kansas Division of Workers' Compensation in which he indicated that Benne had been injured at work. Id. at 155-56. Schlachter described the injury as "bilateral carpal tunnel tendonitis and left entrapment neuropathy at the elbow of the ulnar nerve." Id. at 156. The report cited the cause of the accident as "repetitive use typing, filing, and other office work." Id. at 385. Benne typed this report and therefore knew of its contents.

Benne's symptoms intensified in 1987. Dr. Schlachter confirmed that the aggravation of Benne's condition was caused by an increase in Benne's typing responsibilities. On November 9, 1988, the Workers' Compensation Fund was ordered to pay Benne because Dr. Schlachter had knowingly retained a handicapped employee and, but for her prior injuries, Benne would not have suffered permanent impairment.

Benne alleges that the nature of her injuries changed in 1989. As part of a motion for reconsideration of the district court's ruling on summary judgment, Dr. Schlachter submitted an affidavit claiming that Benne sustained new and qualitatively different injuries on and after December 18, 1989. His conclusions were based on "new and qualitatively different symptoms from those [Benne] had complained of on or prior to December 18, 1989." Appendix at 385.

In 1992, Benne and thirteen other plaintiffs filed tort actions against IBM and Gateway in the Eastern District of New York. Benne asserted negligence and products liability claims, alleging that negligence in the design of Defendants' keyboards caused her repetitive stress injuries. Benne's case was consolidated with other repetitive stress injury cases. See In re Repetitive Stress Injury Cases, 142 F.R.D. 584 (E.D.N.Y.1992). Subsequently, the Second Circuit reversed the district court and deconsolidated the cases. In re Repetitive Stress Injury Litigation, 11 F.3d 368 (2d Cir.1993). After the deconsolidation order, Defendants moved to transfer Benne's case to the District of Kansas, where the injuries arose. The district court granted the motion and the case was transferred.

Defendants moved for summary judgment on the theory that Benne's action was barred by the New York statute of limitations. Applying the conflicts of law principles of New York, the transferor state, the district court determined that to be timely, Benne must

Page 423

have brought her claim in time to satisfy both the New York and Kansas statutes of limitations. The district court then found that Benne's action was brought outside of the time limit permitted by either state's statute. Accordingly, the district court entered summary judgment for Defendants. Benne filed a motion for reconsideration based upon the submission of new affidavits. The district court denied the motion.

Benne now appeals, raising the following issues regarding the district court's grant of summary judgment: (1) whether the district court erred by applying the New York conflicts of law statute; (2) whether the district court erred in finding that Benne's action was time barred by the Kansas statute of limitations; and (3) whether the district court erred in finding that Benne's action was time barred by the New York statute of limitations. Benne also appeals the denial of her motion for reconsideration, alleging that the district court abused its discretion.


We review the entry of summary judgment de novo, applying the same standard used by the district court. Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir.1994). Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hosp. of Independence, Kansas, 854 F.2d 365, 367 (10th Cir.1988).


We first resolve whether the district court properly used the New York statute of limitations, the transferor state, and whether Defendants waived the New York statute of limitations as a defense to Benne's claims.

Pursuant to Defendants' request, the district court granted a change of venue from the Eastern District of New York to the District of Kansas. See 28 U.S.C. § 1404. The rule is settled that when a district court grants a venue change pursuant to 28 U.S.C. § 1404, the transferee court is obligated to apply the law of the state in which the transferor court sits. Van Dusen v. Barrack, 376 U.S...

To continue reading