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Table of Contents
I. Introduction......................................................... 645
II. Facts................................................................ 645
A. Patricia Geressy................................................... 645
B. Jill M. Jackson.................................................... 645
C. Jeannette Rotolo .................................................. 645
III. Law and Its Application .............................................. 646
A. Federal Rules On Setting Aside Verdicts ............................. 646
1. Law.......................................................... 646
2. Application of Law to Facts ..................................... 647
a. Due Diligence Prior to and During Trial........................ 647
b. Existence at Time of Trial.................................... 648
c. Non-Cumulative Evidence.................................... 648
d. Witness Credibility.......................................... 648
e. Admissibility and Materiality ................................. 648
f. Substantial Probability of a Change in the Outcome at Trial....... 648
B. Experts.......................................................... 648
C. Warnings......................................................... 649
1. Law.......................................................... 649
2. Application of Law to Facts ..........â........................... 650
D. Statute of Limitations.............................................. 650
1. Law.......................................................... 650
2. Application of Law to Facts ..................................... 651
a. Patricia Geressy......................................... 651
b. Jill M. Jackson.............................................. 652
c. Thomas M. Farrell .......................................... 652
d. Jeannette Rotolo............................................ 652
E. Injury to Spouse Prior to Marriage.................................. 652
1. Law.......................................................... 652
2. Application of the Law to the Facts............................... 653
F. Deviation of Verdict................................................ 653
1. Law.......................................................... 653
a. Identifying the Normative Group for Comparison................ 657
b. Deviation from the âNormalâ Group ........................... 657
c. Defining Material Deviation.................................. 658
d. Burden of Proof............................................. 660
2. Application of Law to Facts ..................................... 660
a. Patricia Geressy............................................. 660
b. Jill M. Jackson.............................................. 662
c. Jeannette Rotolo............................................ 663
IV. Conclusion.......................................................... 663
Appendix A
Comparable Cases Considered...............................'.......... 664
Appendix B
Patricia Geressy: Tentative Computations................................ 675
Appendix C '
Jill M. Jackson: Tentative Computations................................. 675
Appendix D
Jeanette Rotolo: Tentative Computations ................................ 676
In suits commenced on March 16, 1994, plaintiffs Geressy, Jackson and Rotolo claimed that use of Digitalâs LK201 computer keyboard caused repetitive stress injuries (RSI). 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 Geressysâ 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 defendantâs 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 âwas [in] the summer of 1991. I started waking up at night with numbness, tingling in my hands, burning in my wrists, I didnât think much of it at the time.â
Initially, Ms. Geress/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. Geressyâs condition has continued to deteriorate. She has very little use of either hand.
Plaintiffsâ experts testified that these problems were due to use of defendantâs keyboard which presented ergonomic dangers requiring warnings to the user. Defendantâs experts testified to the contrary, attributing plaintiffs 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 defendantâs computers without warnings of dangers. Some time around Christmas of 1989 she experienced âa pinching pain in [her] left elbow one day at work.â 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 âlower back pain, right hip pain after sitting,â and pain in the âupper right back shoulder area.â
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. Rotoloâmarried on May 15, 1993â has a short history of poor health. Until the onset of RSI, she was a âvery athletic person,â involved in such sports as karate and horseback riding. In April of 1993, Ms. Rotolo, a secretary using defendantâs keyboard, first experienced symptoms of RSI. At work,
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, 116 S.Ct. 2211, 135 L.Ed.2d 659 (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 juryâs 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 juryâs 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, N.Y. v. LeBlanc-Sternberg, - U.S. -, 116 S.Ct. 2546, 135 L.Ed.2d 1067 (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) (âa less stringent standard applies to a motion for a new trial than to a motion for judgment as a matter of lawâ) (citations omitted). In contrast to the standard for judgment as a matter of law, âa new trial may be granted even if there is substantial evidence to support the juryâs verdict .... [A] trial judge hearing a motion for a new trial âis free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner.â â 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 the newly discovered evidence, will probably produce a different result.
Joseph v. Terminix Intâl Co., 17 F.3d 1282 (10th Cir.1994) (citations omitted) (internal quotation marks omitted). Put more concisely the factors are:
The new evidence [must be] (1) be material and not merely cumulative, (2) could not have been discovered before trial through the exercise of reasonable diligence and (3)*647 would probably have changed the outcome of the trial.
Compass Tech. v. Tseng Labs., 71 F.3d 1125, 1130 (3d Cir.1995) (citations omitted).
For the purposes of the instant case the factors to be considered in deciding whether a new trial based on new evidence should be granted are: (1) despite the exercise of due diligence, the moving party was not able to obtain the newly discovered evidence during trial; (2) it existed at the time of trial; (3) it is not cumulative; (4) it is not exclusively about the credibility of a witness; (5) it would probably have been admissible because it is both material and does not violate the rules of evidence and (6) there is a substantial probability that it would have changed the outcome of the trial.
Other than the time for filing and the nature of the burden on the moving party, âRule 59 and Rule 60(b)(2) share the same standard for granting relief on the basis of newly discovered evidence.â Compass Tech, v. Tseng Labs., 71 F.3d 1125, 1130 (3d Cir. 1995). All motions were received prior to the issuing of any final judgment and therefore time limits that come into play after the entry of final judgement are not relevant.
2. Application of Law to Facts
National publicity followed the announcement of the jury verdict in December of 1996. See, e.g., Diana B. Henriques, Big Jury Award in Injury Case Over Keyboards, N.Y. Times, December 10, 1996, at Dl; Jon Auerbach and Laura Johannes, Digital Equipment Loses Verdict on Carpal Tunnel, Wall St. J., Dec. 10, 1996, at B4. The news of Ms. Geress/s nearly $5.3 million verdict against defendant reached Gary S. Gevisser, Chief Executive Officer of Sunmed, Inc. (formerly known as Injury Evaluation Consultants (IEC)) in Las Vegas, Nevada. The information struck Mr. Gevisser as particularly noteworthy because, before the litigation had been commenced, doctors from his company had examined Ms. Geressy, prepared a medical evaluation on her condition for The Port Authority of New York and New Jersey (the IEC Report) and, contrary to the jury finding at trial, had determined that her ill health was unrelated to her work. See Affidavit of Kenneth J. King, sworn to March 25, 1997 ¶¶ 10, 11, Exhibit A (King Affidavit). Mr. Gevisser contacted Digital Equipment Corporation to explain his knowledge of the Geressy case and his companyâs own information regarding Ms. Geressy, See King Affidavit ¶ 11. Defendant then subpoenaed the IEC Report and filed the instant motion for a new trial based on discovery of this evidence.
a. Due Diligence Prior to and During Trial
Defendant exercised due diligence to obtain every possible medical record regarding Ms. Geressy prior to trial. Defendant requested:
the name(s) and address(es) of all medical or health care personnel, and each physician, practitioner, medical facility, clinic and hospital that saw, examined, treated or consulted with Patricia Geressy in connection with [the complained of] injury.
King Affidavit, Exhibit 13 (Digital Equipment Corporationâs First Set of Interrogatories for Plaintiffs Patricia Geressy and Thomas A. Geressy ¶ 4). Also sought were:
All medical records, doctorsâ reports, hospital records, and any other material relevant to the health and physical well-being of plaintiff Patricia Geressy.
All documents relating in any way to the amount(s) and source(s) by which any costs or expenses for medical care, dental care, custodial care, rehabilitation services, loss of earnings or other economic loss for which plaintiff! ] seek[s] to recover in this action, was or may be replaced or indemnified, in whole or in part, from any collateral source including, but not limited to, insurance, social security, workersâ compensation, or employee benefit.
King Affidavit, Exhibit C (Notice to Produce ¶¶ 3, 5). Defendant also obtained authorizations for all medical records which were to include names and addresses of all health care providers. See King Affidavit, Exhibit D (Demand for Executed Authorizations ¶¶ 1, 3). Defendant repeatedly asked Ms. Geressy at her deposition to identify all healthcare providers. See King Affidavit,
b. Existence at Time of Trial
IEC evaluated Ms. Geressy on August 18, 1993 and issued a report shortly thereafter. The IEC Report was in existence years before the trial took place in the fall of 1996.
c. Non-Cumulative Evidence
The IEC Report reflects the results of an Integrated Movement Analysis (IMA), described as follows:
Integrated Movement Analysis is a modality that allows the diagnostician an opportunity to monitor the voluntary and involuntary responses of muscle groups, in direct correlation with the patientâs range of motion, in order to assess the viability of alleged myofascial-type injuries. This highly reliable monitoring system allows the treating physician an opportunity to validate the existence of subjectively reported symptoms in an objective format and can further establish the clinical and pathological significance of other tests, such as MRIs, when findings are present.
King Affidavit, Exhibit A (the IEC Report). The admission of the IEC Report would not have been cumulative. No other experts presented similar evidence.
d.Witness Credibility
The proffered IEC Report is unrelated to issues of witness credibility at trial.
e.Admissibility and Materiality
Mary Rose Cusimano, who has a doctorate in psychology and who co-authored the IEC Report has expressed her willingness to testify in court. See Reply Affidavit of Kenneth J. King, sworn to April 23, 1997, Attachment (Cusimano Affidavit ¶ 4) (Reply King Affidavit). It appears likely that Ms. Cusimanoâs expert testimony would have been admissible and that the IEC Report would have served as a foundation. See Fed.R.Evid. 702, 703. The IEC Report states that:
[Ms. Geressyâs] complaints of carpal tunnel like symptoms are related to hypertonicity in the cervical region____ The readings of the IMA indicate a causal relationship to the symptoms reported by the patient that are non work related in nature.... Causation is ... from the cervical region and appears to be non industrial in nature.
King Affidavit, Exhibit A (the IEC Report). In her recent sworn affidavit, Ms. Cusimano summarized the findings of that report:
We saw no evidence of any cumulative trauma disorder or any injury due to repetitive motion. We concluded that she did not have carpal tunnel syndrome but that her complaints were caused by pathology in her cervical musculature. Based on our examination we concluded that her health complaints were not caused by her work.
Reply King Affidavit, Attachment (Cusimano Affidavit ¶ 33). This Report and expert explanatory testimony went to the heart of a central issue at trialâthe cause of Ms. Geressyâs injuries.
f.Substantial Probability of a Change in the Outcome at Trial
This newly discovered evidence is unique and directly relevant to the critical issue of causation. It is substantially probable that this medical report, created almost a year before the instant litigation was filed and obviously unconnected to it, would have caused the jury to evaluate all of the evidence at trial differently. The outcome at trial could well have been different if this evidence had been available.
This new evidence satisfies all of the factors for granting a new trial based on new evidence pursuant to Rule 59(a) of the Federal Rules of Civil Procedure. Because the motion was timely pursuant to Rule 59(b), the court need not consider Rule 60(b)(2) which would, in any event, have provided an alternative basis for granting a new trial in the exercise of discretion.
B. Experts
No serious question was raised about the admissibility of expert evidence. All such testimony was admissible since it was helpful to the jury in determining the issues, and the
C. Warnings
1. Law
A âmanufacturerâs knowledge of special risks of harm attendant upon normal use of his product imposes a duty upon the manufacturer to warn adequately those using his product of those risks.â Ezagui v. Dow Chemical Corp., 598 F.2d 727, 732 (2d Cir. 1979) (citations omitted). See also, e.g., Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 532, 571 N.E.2d 645, 648, 569 N.Y.S.2d 337, 340 (1991) (âA manufacturer who places into the stream of commerce a defective product which causes injury may be liable for such injury. A defect in a product may consist of a mistake in manufacturing, an improper design or the inadequacy or absence of warnings for the use of the product.â) (citations omitted); Enright by Enright v. Eli Lilly & Co., 77 N.Y.2d 377, 568 N.Y.S.2d 550, 555, 570 N.E.2d 198 (1991); Wolfgruber v. Upjohn Co., 72 A.D.2d 59, 62, 423 N.Y.S.2d 95, 97 (4th Depât 1979), ajfd mem. 52 N.Y.2d 768, 417 N.E.2d 1002, 436 N.Y.S.2d 614 (1980).
The nature of the failure to warn tort in New York is fairly straight forward. See 1 N.Y. Pattern Jury InstructionsâCivil § 2:135 (1974) (âThe manufacturer of a product which is reasonably certain to be dangerous if used in a way which he should reasonably foresee it would be used is under a duty to exercise reasonable care to give reasonable and adequate warning of any dangers known to him or which in the exercise of reasonable care he should have known and which the user of the product ordinarily would not discover. Reasonable care means that degree of care which a reasonably prudent person would exercise under the same circumstances.â); IA N.Y. Pattern Jury InstructionsâCivil § 2:135 (3d ed.1996). See also Restatement (Third) of Torts § 2(c) (Draft adopted at May 1997 meeting of American Law Institute) (âA product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product ... is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution and the omission of the instructions or warnings renders the product not reasonably safe.â).
Whether it is reasonably safe âwhen marketedâ depends in part on what the manufacturer knew or should have known at the time of marketingâi.e., the state of the art. The manufacturer may be found to be unreasonable even after the product has been marketed if it should have been aware of dangers and ii was reasonable to try to bring them to the attention of users of the product in the field.
The relevant portions of the charge, without substantial objection, became the law of the case:
____ A failure to warn or an inadequate warning about dangers attendant upon the use of the product may make the product not reasonably safe and therefore defective even if it was otherwise properly designed, manufactured and sold.
A manufacturer of a product which is likely to be dangerous if utilized in an intended or reasonably foreseeable manner is under a duty to give adequate warning which would be useful to the user of any known dangers or dangers which in the exercise of reasonable care it should have known and which those foreseeably exposed to these products ordinarily would not discover. It is sufficient that a reasonable manufacturer which knew of the productâs potential for causing injury would have concluded that the product should not have been marketed without suitable warnings.
When we talk of exercising âreasonable careâ to give a warning, we mean that degree of care which a reasonably prudent person would exercise under the same circumstances.
*650 The manufacturer must keep informed of knowledge of the effect of its products gained through research, reports, scientific literature and other available methods. It must, when reasonable, take such steps as are reasonably necessary to bring that knowledge to the attention of those foreseeably exposed to its products; that is, it must take reasonable steps to adequately warn them. In deciding what is reasonable you may consider the special circumstances of the case including the degree of hazard and whether it would reasonably be expected to be known to the user, the likelihood and severity of harm, and the feasibility of actually getting a warning to the plaintiff and the effectiveness of a warning, and whether the danger was not obvious to the user and whether the product causes immediate symptoms. A manufacturer does not have a duty to warn the user of a danger obvious to the user.
The duty to warn extends to dangers or defects about which the manufacturer either actually knew or should have known. âShould have knownâ means that a manufacturer is held to that level of knowledge which knowledge people in the particular industry had, and in view of the state of medical and scientific knowledge, and technology in general, and in the manufacturerâs own experience in particular, reasonably should have had at the time the product was marketed. You may consider what was known or should have been known about the dangers of the product and the effects of a failure to take adequate precautions in its use.
You must decide, based on all the evidence that you have heard and seen during this trial, whether the plaintiff has proved that the defendant actually was, or should have been aware that its products, when used as the manufacturer would reasonably foresee that products would be used, could cause injury to those who used the products.
The precise disease suffered by a plaintiff need not have been foreseeable by the' defendant. It is sufficient that the defendant knew or should have known that some serious injury could result from use of its products.
Each plaintiff had a right to decide for herself whether to work and what she would require as protection before continuing to work. The fact that another worker might have done the job does not negate the obligation of the defendant to a particular worker. If, however, as defendant claims, a plaintiff would have done her work the same way whether or not the defendant gave warnings, then there was no cause of the injuries from the failure to warn.
You may find that a warning must specifically and clearly identify each of the potential dangers involved in the productsâ uses including those dangers which might affect only some users, but not all users.
A defendantâs duty to use reasonable care in giving adequate warning is nondelegable. That means that a defendant may not rely on others to issue an adequate warning. It was the duty of defendant to issue warnings, if any, that you find were necessary to those who might be exposed to the defendantâs products.
The duty to warn does not terminate when an item produced by the manufacturer is sold. It continues to exist and be a responsibility of a defendant even after the product was sold, if it becomes known or reasonably should have become known to the manufacturer that persons who use the product may be harmed.
2. Application of Law to Facts
Plaintiffs produced sufficient evidence to make out a classic product liability case for failure to warn under New York law. They successfully persuaded the jury to find in their favor on all of the elements of such a case. Based on the evidence, the jury could have found that: defendant had a duty to plaintiffs to warn of the dangers inherent in its product, the LK201 keyboard; defendant breached that duty by not issuing appropriate warnings; and defendantâs failure to warn was the proximate cause of all three plaintiffsâ RSIs.
D. Statute of Limitations
1. Law
With the exception of certain specified actions not relevant in the instant case, person
At the time of the Dorsey decision, there was uncertainty about what constitutes âthe time of injuryâ in RSI cases:
When does the statute of limitations begin to run in a products liability action in which plaintiffs continued use of a keyboard has caused ârepetitive stressâ injuries (âRSIâ) or carpal tunnel syndrome? Divergent decisions have been reached by the Appellate Divisions of the Fourth and First Departments. Interestingly, both courts purportedly apply the traditional âdate of injuryâ rule, but with somewhat different results.
Vincent C. Alexander, Supplementary Practice Commentaries, 7B Civil Practice Law and Rules 116 (McKinney 1990 & Supp.1997) (discussing Piper v. International Business Machines Corp., 219 A.D.2d 56, 639 N.Y.S.2d 623 (4th Depât 1996) and Blanco v. American Tel. & Tel., 223 A.D.2d 156, 646 N.Y.S.2d 99, rehâg denied, leave to appeal granted, 234 A.D.2d 239, 652 N.Y.S.2d 503 (1st Depât 1996) (Mem.) currently pending before the Court of Appeals). Because the Court of Appeals âhas not yet ruled .... [i]ts view must be predicted.â Dorsey v. Apple Computers, Inc., 936 F.Supp. 89, 90 (E.D.N.Y.1996) (citations omitted).
If any plaintiff had suffered a new injury subsequent to her initial injury, any claims based on the later injury could be filed within three years of that later injury. New Yorkâs two-injury rule controls in such cases:
New York courts recognize that a single causal agent or event may produce two diseases [that] are separate and distinct. Each disease may give rise to its own cause of action.... Under the [two-injury] rule, diseases that share a common cause may nonetheless be held separate and distinct where their biological manifestations are different and where the presence of one is not necessarily a predicate for the otherâs development.
In re Breast Implant Cases, 942 F.Supp. 958, 961-62 (S.D.N.Y. & E.D.N.Y.1996) (citations omitted) (internal quotation marks omitted).
The two-injury rule, however, is inapplicable in cases where continued contact with a causal agent leads to a worsening of the original condition rather than a separate and unrelated injury:
It is a settled principle that once a compensable injury has occurred, the time within which an action may be commenced may not be extended merely by the aggravation, or exacerbation, of that injury by continued contact with the same offending product.
Coughlin v. International Bus. Mach. Corp., 225 A.D.2d 256, 260, 650 N.Y.S.2d 477, 480 (3d Depât 1996).
Plaintiffs filed their suits on March 16, 1994. Defendantâs motion for judgment as a matter of law on statute of limitations grounds must be granted with respect to each plaintiff who suffered no new and distinct injury after March 16, 1991. Since all of the injuries in the instant case involved a single injury for each plaintiff that developed over time, the court need not further consider the two-injury rule.
2. Application of Law to Facts
a. Patricia Geressy
According to Ms. Geressyâs own testimony, her symptoms of what was later diagnosed as RSI began in the summer of 1991. See Trial Transcript at 288. There is no reason to believe that Ms. Geressy was unable to testify accurately as to the first signs of a significant change in her health. The evidence submitted at trial supports a finding of the initial date of injury in the summer of 1991. There are, however, two pieces of evidence that suggest Ms. Geressy experienced RSI related pain and numbness before the summer of 1991. Neither was necessarily sufficient to convince a reasonable juror that her symptoms began earlier.
Dr. Pascarelli testified that â[a]ccording to Mrs. Geressy, she said the first symptoms
The records of Dr. Urs also suggest that Ms. Geressy may have been injured prior to the summer of 1991. These records are more troubling, indicating that Ms. Geressy had been suffering for a year prior to her November 18, 1991 consultation with Dr. Urs. See id. at 569. The evidence presented at trial, however, did not require this conclusion since it suggested only an imprecise recording of approximate times that Ms. Geressy had been afflicted. At most, the trial record indicates that Ms. Geressy may have suffered from de minimus injury prior to March 1991, although even this possibility could properly have been ignored by the jury.
b.Jill M. Jackson
Ms. Jackson has suffered from a number of ailments as far back as the late 1980s. By 1990, Ms. Jackson had begun to experience RSI symptoms in her upper extremities. Testimony and records presented at trial indicate that in 1990, Ms. Jackson sought medical treatment for left elbow pain, âlower back pain, right hip pain after sittingâ and pain in her âupper right back shoulder area.â Trial Transcript at 617, 619. This evidence is fairly consistent (although off by a few months) with Ms. Jacksonâs initial complaint in which she claimed that âon or about August 1990, [she] began to experience some symptoms such as numbness, tingling, pain and/or sensory motor impairments of the upper extremities, neck and torso.â Evidence of Ms. Jacksonâs 1990 shoulder pain clearly refers to a condition in her upper extremities.
Plaintiffâs counsel attempted to distinguish Ms. Jacksonâs left elbow pain during the 1989-1990 winter from later injuries to the same elbow in an effort to establish that Ms. Jackson experienced new injuries after March 16, 1991, the critical date for statute of limitations purposes. Counsel was unsuccessful.
No possible reasonable analysis of the evidence supports a finding that Ms. Jacksonâs alleged repetitive stress injuries began any later than 1990. Were they caused by use of defendantâs keyboard, she would reasonably have been expected to have been aware of their cause before March 1991. As a matter of law, regardless of later related or aggravated conditions, Ms. Jacksonâs RSIs (in both left and right upper extremities) first occurred, and her cause of action accrued, before March 16,1991.
c. Thomas M. Farrell
Because Ms. Jacksonâs claim fails on statute of limitations grounds, the derivative loss of consortium claim filed by her husband, Thomas M Farrell must also fall. See, e.g., Liff v. Schildkrout, 49 N.Y.2d 622, 623, 427 N.Y.S.2d 746, 748, 404 N.E.2d 1288, 1291 (1980) (â[A] spouseâs cause of action for loss of consortium [does not] exist[] in the common law independent of the injured spouseâs right to maintain an action for injuries sustained.â) (citations omitted), Rothfarb v. Brookdale Hosp., 139 A.D.2d 720, 722, 527 N.Y.S.2d 473, 475 (2d Depât 1988) (a âloss of consortium ... cause of action ... is a derivative one ..., and thus is governed by the same period of limitations which controls the underlying cause of actionâ) (citations omitted).
d. Jeannette Rotolo
Ms. Rotolo first used a Digital Keyboard when she began working at Long Island Jewish Medical Center in February 1992. Her first RSI symptoms appeared in April 1993. Defendant recognizes that no statute of limitations can be asserted against this plaintiff.
E. Injury to Spouse Prior to Marriage
1. Law
A cause of action will not he for loss of consortium where the injured tort victim