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RSI cases fall in industry reversal

As RSI claims continue to rise, product liability suits appear to be waning as court rulings place new limits on legal action.

As RSI claims in the workplace continue to rise, product liability suits against manufacturers appear to be waning as court rulings place new limits on legal action--reversing an industry trend that began only a few years ago.

By some accounts, claims have fallen dramatically for keyboard makers, traditional targets of cases claiming repetitive stress injury. RSI, a condition stemming from continuous movement that damages nerves, tendons, and muscles, has developed not only from computer-related tasks but also from activities as diverse as playing the piano and operating a jackhammer.

"There has been an acknowledgment by plaintiffs' lawyers that there is not sufficient scientific or medical evidence to tie together typing on a keyboard and whatever ailments these people supposedly have," said attorney Michael Cerussi, who has represented computer companies in several RSI cases.

RSI product liability cases began surfacing in late 1994 and peaked a few months later with about 2,000 cases pending simultaneously, Cerussi said. Today, fewer than 1,000 suits are pending.

At the same time, however, the incidence of repetitive motion injuries has continued to rise as typewriters in the workplace have given way to computers. With the typewriter, the manual carriage return compelled the user to pause at the end of every line, but with the advent of computer word processing, uninterrupted typing has produced a slew of workplace injuries.

RSI instances rose 1,000 percent between 1982 and 1991, according to recently disclosed studies, and the injury now accounts for 61 percent of all workplace ailments. The AFL-CIO estimates that more than 700,000 U.S. workers each year lose time from their jobs because of RSI and back injury claims, with costs to the national economy of up to $20 billion per year.

Only a tiny minority of these workers wind up suing. Instead, many go through workers' compensation systems, which vary from state to state. Benefits awarded range from full payment of medical bills to disability payments and vocational retraining.

A key court ruling handed down last week in New York is likely to bolster that trend. In that case, a state judge faced a crucial question: At what point did the clock begin ticking for a three-year statute of limitations to file product liability lawsuits?

For years, interpretations of this time frame had gone back and forth, with one starting the three-year-period at the moment the user first touched the keyboard (putting a tougher burden on the user), and another starting it when the user first received a medical diagnosis (extending the statute of limitations, to the detriment of keyboard vendors).

The middle ground found by the court in the New York case establishes the starting point as the time of the onset of symptoms or the last use of the keyboard, whichever is earlier. In establishing this rule, the court clearly distinguished between keyboard RSI and other workplace injuries, such as exposure to hazardous substances or defective products.

In that decision, Judge Richard Wesley sought to "strike a new balance" to craft a rule that would fairly account for the special nature of keyboard-related RSI, which he called the "information age injury."

Computer manufacturers, fearful that the court would adopt a date-of-diagnosis standard, applauded the ruling. The companies named in the New York case decided last week include IBM, Apple Computer, Compaq Computer, and Dell Computer.

Digital Equipment, the subject of a particularly high-profile court battle last year that resulted in a $5.3 million judgment that was later overturned, predicted that the ruling would result in the dismissal of a significant number of cases pending against various keyboard vendors. And Digital, whose case is still pending, is not alone in its hopes.

Apple spokesperson Rhona Hamilton estimated that her company has faced about 60 such suits at any given time during the past few years. Typically, the suits involved other vendors as well.

Cerussi attributed the decline in lawsuits to the high failure rate of those that have come to trial. IBM has not lost any of the seven cases brought against it, he said. Of 17 cases against other vendors, Cerussi added, only the Digital case resulted in victory for the plaintiffs--and that award was eventually set aside.

Making things tougher for injury claims, lawmakers across the country are looking to cut back on workers' compensation benefits, according to labor advocates. Donald Fohrman, an Illinois attorney whose practice specializes in RSI-related worker's compensation claims, singled out New York and Illinois as having labor-friendly workers' compensation programs but said benefits have been gutted elsewhere.

"It's a political thing," he said. "More conservative legislatures are cutting back continually on benefits. It's a tragedy."

But even if RSI product liability cases disappear from the courts' dockets, they will have left their mark on the judicial system, which has struggled to keep up with changes wrought by rapid technological evolution.

"Progress begets promise and problems," Wesley noted in last week's opinion, sounding a theme that has resonated not only in the courts but in the legislative arena as well. (See related stories)