Statutes of limitations and repetitive strain injuries: winning strategies.

• Author: Leibson, Russell

WELL into the era of mass torts, the plaintiffs' bar is busily looking for new worlds to conquer as the asbestos gold mine begins its inevitable play-out. Electromagnetic field radiation, AIDS-tainted blood, and lead paint cases are but a few examples of the parade of horribles facing product manufacturers in coming years. However, the increasing prevalence of repetitive strain injuries, or RSI, threatens, according to the plaintiffs' bar, to become the next wave of mass tort litigation, rivaling even the asbestos litigation explosion of the 1980s.

RSI, caused by repetitive body motions, affect a vast and varied array of workers, including computer programmers and users, grocery clerks, meat packers, assembly line workers, construction workers and telephone operators. Probably the most common of these ailments is carpal tunnel syndrome, an impingement of the ulnar nerve in the wrist, producing symptoms ranging from mild to severe pain and numbness in the upper extremities.

According to the most recent statistics from the California Department of Industrial Relations, such disorders were the most prevalent workplace illness in 1991, accounting for 32 percent of all workplace illnesses, up from 12 percent in 1982. Close to 70,000 Californians reported such injuries during that nine-year period. U.S. Department of Labor statistics show that nationwide RSI accounted for 62 percent, or 281,800 cases, of new illnesses reported by private U.S. companies in 1992, up from 21 percent a decade earlier.

Once relegated to workers' compensation as the sole remedy, plaintiffs and their attorneys are becoming more sophisticated in finding ways to sue third-party defendants, including manufacturers, for work-related RSI. Although the injuries in these cases typically are not serious and the damages potential not great, very few RSI cases have gone to verdict. The reason? Manufacturers are settling the cases because of a concern of setting potentially dangerous precedents and encouraging even more litigation.

This strategy often results in manufacturers routinely paying nuisance value settlements, which earns them reputations as easy marks among the plaintiffs' bar. Hooking the product manufacturer into paying nuisance value settlements on RSI claims often is just as satisfying as obtaining a plaintiff's verdict. Defense fees and costs in such cases, which are often expert witness intensive, can easily exceed the cost of a settlement.

In many of these cases, however, the defense has a good chance of prevailing on summary judgment on statute of limitations grounds, thus significantly reducing the likelihood of becoming a target for more lawsuits.

WHAT'S HAPPENING?

Three recent federal court decisions from the Northern District of California, Ward v. Westinghouse, Neer v. IBM and Eagleston v. IBM address the issue of when the statute of limitations bars RSI cases.

Both Ward and Neer were decided by District Judge Barbara Caulfield; Eagleston by District Judge Eugene Lynch. All three cases were decided on...