Blanco v. American Tel. & Tel. Co.

• Decision Date: 25 November 1997
• Citation: 666 N.Y.S.2d 536,90 N.Y.2d 757,689 N.E.2d 506,1997 WL 729116
• Parties: , 689 N.E.2d 506, Prod.Liab.Rep. (CCH) P 15,116, 1997 N.Y. Slip Op. 10,213 Diane BLANCO, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants, and International Business Machines Corporation, Respondent. Bonnie L. CLARK et al., Appellants, v. APPLE COMPUTER, INC., et al., Respondents. Kathryn AWGUL, Appellant, v. COMPAQ COMPUTER CORPORATION, Defendant, and Dell Computer Corporation et al., Respondents. In the Matter of NEW YORK COUNTY DATA ENTRY WORKER PRODUCT LIABILITY LITIGATION. Rebecca AIKMAN et al., Plaintiffs, and Lisa Redd, et al., Respondents, v. ATEX, INC., Appellant. (And Other Actions.)
• Court: New York Court of Appeals Court of Appeals

Page 536

666 N.Y.S.2d 536

90 N.Y.2d 757, 689 N.E.2d 506,

Prod.Liab.Rep. (CCH) P 15,116,

1997 N.Y. Slip Op. 10,213

Diane BLANCO, Appellant, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, et al., Defendants, and International Business Machines Corporation, Respondent.

Bonnie L. CLARK et al., Appellants, v. APPLE COMPUTER, INC., et al., Respondents.

Kathryn AWGUL, Appellant, v. COMPAQ COMPUTER CORPORATION, Defendant, and Dell Computer Corporation et al., Respondents.

In the Matter of NEW YORK COUNTY DATA ENTRY WORKER PRODUCT

LIABILITY LITIGATION.

Rebecca AIKMAN et al., Plaintiffs, and Lisa Redd, et al., Respondents, v. ATEX, INC., Appellant. (And Other Actions.)

Court of Appeals of New York.

Nov. 25, 1997.

Levy Phillips & Konigsberg, L.L.P., New York City (Steven J. Phillips, Alani Golanski and Stephenie L. Bross, of counsel), for appellants.

Cerussi & Spring, White Plains (Michael A. Cerussi, Jr., Peter Riggs and Richard D. Bentzen, of counsel); Edwards & Angell, New York City (Ira G. Greenberg and Andrew P. Fishkin, of counsel); Porzio, Bromberg & Newman, P.C. (Steven P. Benenson, Peter A. Drucker and Garineh S. Dovletian, of counsel); Skadden, Arps, Slate, Meagher & Flom, L.L.P. (Bert L. Wolff and Steven F. Napolitano, of counsel); Simpson, Thacher & Bartlett (George M. Newcombe, of counsel); Beatie, King & Abate (Kenneth J. King and Charna L. Gerstenhaber, of counsel); Bowman and Brooke, L.L.P. (Hildy Bowbeer and Daniel C. Adams of the Minnesota Bar, admitted pro hac vice, of counsel); Standard Weisberg, P.C., New York City (Anthony J. McNulty and Shauna J. Reeder, of counsel); Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P.C., Uniondale (William D. Wall, of counsel); Nixon, Hargrave, Devans & Doyle, Rochester (Thomas E. Reidy and Gordon L. Lang, of counsel); Schoeman, Marsh & Updike, L.L.P., New York City (Charles B. Updike, of counsel); Herzfeld & Rubin, P.C., (Jeffrey L. Chase and Maureen Doerner Fogel, of counsel); Cozen & O'Connor (William P. Shelley, of counsel); Walsh & Sheehan, L.L.P. (Michael P. Walsh and Maura Bleichert Lee, of counsel); Damon & Morey, L.L.P., Buffalo (Thomas J. Drury and Daniel T. Cavarello, of counsel); Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (H. Michael O'Brien, of counsel); Kenney, Kanaley, Shelton & Liptak, L.L.P., Buffalo (Thomas E. Liptak, of counsel); Meyers, Bianchi & McConnell, New York City (Andrew Feldman, of counsel); Herzfeld & Rubin, P.C. (Robert N. Spinelli and Ann C. Lebowitz of the Pennsylvania Bar, admitted pro hac vice, of counsel); Lester, Schwab, Katz & Dwyer, New York City (Steven J. Rice and Thomas J. Force, of counsel); Jacob, Medinger & Finnegan, L.L.P. (Peter A. Cross, of counsel); Holleb & Coff (Irving B. Levinson and Julie L. Schultz of the Illinois Bar, admitted pro hac vice, of counsel); Torino & Singer, P.C., Mineola (Bruce A. Torino, of counsel): Quirk & Bakalor, P.C., New York City (Robert E. Quirk, of counsel); Mallow, Konstam & Hager, P.C. (Gerold Mallow and David M. Mallow, of counsel); O'Brien & Mayr, Rockville Centre (Robert B. Churbuck, of counsel); Costello, Shea & Gaffney, New York City (Steven E. Garry, of counsel); Ahmuty, Demers & McManus, White Plains (Thomas M. DeSimone, of counsel); Garbarini & Scher, P.C., New York City (Myrna A. Levinson, of counsel); McMahon, Martine & Gallagher (Anthony D. Martine, of counsel); Thomas J. Reddington

and Gerard J. Marulli; Gordon & Silber, P.C. (Michel Yoeli, of counsel); Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele & Nicholson (Julie B. Siminoff, of counsel); and Preti, Flaherty, Belliveau & Pachios, L.L.C. (Elizabeth A. Campbell of the Maine Bar, admitted pro hac vice, of counsel), for respondents

Daniel J. Popeo and Richard A. Samp of the District of Columbia Bar, admitted pro hac vice, for Washington Legal Foundation, amicus curiae.

OPINION OF THE COURT

WESLEY, Judge.

Progress begets promise and problems. Computer technology has ushered in the "information age" and helped to create a global workplace that is accessible from one's home or office. These cases present us with a difficult question arising from the widespread use of computers in the workplace: when does a cause of action accrue against a keyboard manufacturer for repetitive stress injury (RSI) suffered by a keyboard user? We conclude that, in such cases, the cause of action accrues upon the onset of symptoms, or the last use of the keyboard, whichever is earlier.

I.

This appeal involves over 90 separate plaintiffs suing various keyboard manufacturers in a number of separate lawsuits. By order entered January 22, 1993, Administrative Judge Stanley Ostrau, in apparent recognition of the large number of RSI cases which were making their way through Supreme Court, New York County, assigned all cases involving RSIs to Justice Stephen Crane for pretrial purposes. Soon thereafter, Justice Crane established procedures for the joint briefing of various legal issues. Defendants' motions raising Statute of Limitations issues were treated as dismissal motions made pursuant to CPLR 3211(a)(5).

Most of the pleadings in the cases before us on this appeal contain common allegations with respect to the onset and manifestation of plaintiffs' RSIs. Each plaintiff outlines his or her history of keyboard use, including, to the extent known, the particular keyboards used. The pleadings then go on to state that plaintiffs' injuries were "insidious in their onset," such that "it is not possible to identify [either] the precise date of the onset of symptoms," or to say "that any initial symptoms experienced constituted the full manifestation or even partial manifestation" of the injury. Nevertheless, the plaintiffs do identify dates upon which they began experiencing some symptoms, such as numbness, tingling, pain and/or sensory motor impairments of the upper extremities, neck and torso. Plaintiffs further state the dates upon which they were diagnosed with various RSIs. Finally, the pleadings generally allege that the nature of each plaintiff's injury is "such that there is no precise moment of injury," but rather a "cumulative and prolonged process by which [each] plaintiff sustained injury [and] aggravated [an] existing injury."

RSI is one of several essentially synonymous terms, all of which "connote injury to the musculo-skeletal tissues from repeated motions and exertions" (Russ, Freeman and McQuade, 5 Attorney's Medical Advisor § 66:4, at 66-8). RSIs can be caused by activities as divergent as playing video games or working a jackhammer. Carpal tunnel syndrome, probably the most prevalent keyboard-related injury, is a subcategory of RSI involving compression of the median nerve as it passes through the wrist between the flexor tendons and the transverse carpal tunnel ligament (the area known as the carpal tunnel) (Ausman and Snyder, 3 Medical Library Lawyer's Edition § 4:18, at 53 [1989 ed] ). While carpal tunnel syndrome can have a number of causes, ranging from arthritis or benign tumors to blunt trauma, the condition is seen with increasing frequency as a result of workplace use of keyboards. Indeed, according to various surveys, the occurrence of RSIs among workers rose roughly 1,000% between 1982 and 1991, to the point that today they account for 61% of all workplace illnesses (see, Comment, Cumulative Trauma Disorders: A Hidden Downside to Technological Advancement, 11 J Contemp Health L & Pol'y 479; Juge, Stokes and Pine, Cumulative Trauma Disorders--"The Disease of the 90's": An Interdisciplinary Analysis, 55 La. L. Rev. 895).

In deciding what accrual rule to apply to these claims, the trial court felt compelled to follow Wallen v. American Tel. & Tel. Co. (Sup. Ct., Bronx County, Sept. 17, 1992, Saks, J., index No. 12336/91, aff'd for reasons stated below 195 A.D.2d 417, 601 N.Y.S.2d 796, lv. denied 82 N.Y.2d 659, 605 N.Y.S.2d 5, 625 N.E.2d 590). Based upon Wallen, the court ruled that accrual in RSI cases is measured from the onset of the plaintiff's symptoms without requiring a diagnosis of their cause. The Appellate Division disagreed. Finding this Court's exposure line of cases controlling, the Appellate Division held that a cause of action for RSI accrues upon first use of a keyboard. The Court recognized that there are some differences between the two types of claims, but held that RSIs in general "are not distinguishable from the cases where repeated, prolonged exposure to, e.g., asbestos, is necessary before the damages will develop and manifest themselves" (Blanco v. American Tel. & Tel. Co., 223 A.D.2d 156, 164, 646 N.Y.S.2d 99).

While the Appellate Division found our toxic torts cases to be controlling, it also held that CPLR 214-c (providing a discovery rule in toxic torts cases) was inapplicable. The Court recognized the harshness of the rule it had pronounced, but held that the remedy, if there was to be one, lay with the Legislature rather than the courts.

II.

At the outset, we agree with the Appellate Division that CPLR 214-c is inapplicable in this case. CPLR 214-c was enacted in 1986 as part of a larger "tort reform" package (L.1986, ch. 682), and provides that "the three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances * * * must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." (CPLR 214-c[2].) CPLR 214-c was enacted to abrogate the exposure rule which this Court had formulated and adhered to in a line of cases stretching from Schmidt v. Merchants Desp. Transp. Co., 270 N.Y. 287, 200 N.E. 824 to Consorti v. Owens-Corning Fiberglas Corp., 86 N.Y.2d 449, 634 N.Y.S.2d 18, 657 N.E.2d 1301.

While CPLR 214-c is a remedial statute and as such, should be...