* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 10/11/96 TENTH CIRCUIT

Marilyn L. Merica, Plaintiff-Appellant, v. Apertus Technologies, Inc., et al., Defendants-Appellees. No. 95-3173 (D.C. No. 94-CV-1393-PFK) District of Kansas

ORDER AND JUDGMENT *

Before TACHA, Circuit Judge, MURPHY , Circuit Judge , and MCWILLIAMS, Senior Circuit Judge.

MCWILLIAMS, Senior Circuit Judge.

_________________________________ On October 16, 1992, Marilyn L. Merica and her husband, Steve A. Merica, both citizens and residents of Kansas, filed a complaint in the United States District Court for the Eastern District of New York against Apertus Technologies, Inc. (Apertus), formerly known as Lee Data Corporation, American Telephone & Telegraph Corporation (AT&T),- 2 -

and AT&T Teletype Corporation, a division thereof, and AT&T Teletype Corporation, formerly known as Teletype Corporation. Marilyn L. Merica (hereinafter Merica) was employed from 1981 until the filing of her complaint as an operator, customer service representative and an account representative by Southwestern Bell Telephone in Kansas. From 1981 until 1986, Merica used keyboard equipment manufactured by AT&T and AT&T Teletype Corporation. After 1986, Merica used keyboard equipment manufactured by Apertus. In her complaint, Merica alleged that the keyboard equipment manufactured by the defendants was defective in design and, because of that defect, caused its users, including herself, to suffer repetitive stress injuries. Merica also alleged that her stress injuries were “insidious in their onset” and that accordingly she could not “identity precisely the precise date of the onset of symptoms.” However, she further alleged that in November 1989, she received the diagnosis of bilateral carpal tunnel syndrome. Merica asserted a claim based on negligence and a second claim based on product liability. Steve A. Merica asserted a claim for loss of services, society and consortium. Merica sought $1,000,000 as compensatory damages and Steve A. Merica asked for compensatory in the amount of $500,000. Each, also, asked for punitive damages in the amount of $10,000,000. Merica’s case was consolidated with other keyboard product liability actions then pending in the United States District Court for the Eastern District of New York. The- 3 -

Second Circuit Court of Appeals subsequently vacated the consolidation orders. See In re Repetitive Stress Injury Litigation , 11 F.3d 368 (2nd Cir. 1993). Thereafter, on motion of the defendants, Merica’s action, and others, were severed and transferred pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the District of Kansas. On December 16, 1994, Merica filed an amended complaint in which she added Honeywell, Inc. as a defendant. In her amended complaint, Merica alleged that “[c]ommencing at the time of her initial employment and continuing thereafter while engaged in the operation of said machines in the manner they were intended to be used, the Plaintiff began to experience numbness, tingling, pain and/or sensory motor impairments of the upper extremities, neck, torso, and back with additional new symptoms thereafter.” Apertus, AT&T, and Honeywell, Inc. filed motions for summary judgment based on the applicable statutes of limitations. There was considerable discovery. On April 27, 1995, judgment was entered, granting summary judgment to the defendants. The district court held that Merica’s claims were time-barred under both the Kansas and New York statutes of limitations. Specifically, the district court found that the onset of Merica’s injuries occurred in 1989, and that symptoms thereof were “definitely present” by June of that year. The court also found that Merica did not file her action until October 16, 1992. Merica filed a timely notice of appeal from the court’s order. As indicated, Merica was a citizen and resident of Kansas, and her injury occurred- 4 -

in the State of Kansas. Suit was brought, however, in the United States District Court for the Eastern District of New York, but was later transferred to the United States District Court for the District of Kansas. When applying the New York statute of limitations to an action arising outside of the state, the first step is to refer to New York’s “borrowing
statute.” See N.Y. Civ. Prac. L & R § 202 (McKinney 1990). That statute provides as follows: An action based upon a cause of action accruing without the

state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply. The parties agree that if Merica’s cause of action is barred by either New York’s statute of limitations (three years) or the Kansas statute of limitations (two years), then her claims are time-barred. As stated, the district court held that Merica’s claims were time-barred by both the Kansas statute of limitations and the New York statute of limitations. As concerns the Kansas statute of limitations, counsel for Merica states in their brief that “[i]f defendants need only show under Kansas law that plaintiff knew she was injured through use of her keyboard more than two years prior to the filing of the Complaint, then defendants may have been entitled to summary judgment.” However, counsel asserts such is not the test, and that under Kansas law the true test is whether the injured party knew, or could reasonably have been expected to know, “of the alleged- 5 -

negligence of defendants in designing their keyboards and in failing to warn plaintiff.” In thus arguing, counsel relies on Gilger v. Lee Constr., Inc. , 820 P.2d 390 (Kansas 1991). In this connection Merica apparently filed an affidavit in which she stated that she did not know of possible negligent design of the equipment manufactured by the defendants until shortly before she filed her complaint. This same argument, i.e. that the injured party did not know until shortly before filing the complaint that the defendants were negligent in the design of their keyboards, was recently considered, and rejected, by us in Benne v. International Business Machines Corp., 87 F.3d 419 (10th Cir. 1996). Like the instant case, Benne was a repetitive stress product liability case involving a Kansas citizen and resident who allegedly incurred injuries from keyboard equipment while employed in Kansas. Benne, too, brought her action in the United States District Court for the Eastern District of New York, but her case was transferred to the United States District Court for the District of Kansas, which court granted summary judgment for the defendants, holding that the complaint was filed outside both the Kansas and New York statutes of limitations. On appeal, Benne argued that Gilger should lead to a reversal in her case because “she did not realize the keyboards had been negligently designed until 1992,” which was within the Kansas two year statute of limitations. In Benne , we rejected that argument, and affirmed the grant of summary judgment.
In Benne, we held that under the New York “borrowing statute” the plaintiff’s- 6 -

claims “must have been timely under both the limitations periods of New York and Kansas” if her claims were to “survive the Defendants’ motion for summary judgment.” The two-year statute of limitations contained in K.S.A. 60-513 provides in subsection (b) as follows: Except as provided in subsection (c), the causes of action

listed in subsection (a) shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party. . . .
In Benne, the plaintiff interpreted language in Gilger, supra, and its predecessor, Hecht v. First Nat’l. Bank & Trust Co., 490 P.2d 649 (Kansas 1971), “as setting forth the rule that a plaintiff’s knowledge of the cause of her injuries is irrelevant until she realizes that the designer of the product may have acted negligently.” Benne, 87 F.3d at 426. In rejecting such an interpretation of Gilger and Hecht, we, in Benne, spoke as follows:

We do not believe that the Kansas Supreme Court intended to establish the rule that a plaintiff could be fully aware of the cause of her injury, yet wait to bring a claim based upon negligent design some indeterminate time later when the plaintiff develops the thought that the defendant may have been negligent. Rather we believe the rule from Hecht is intended to give plaintiffs who suffer from latent or difficult to diagnosis injuries the same advantages as those plaintiffs whose injuries are immediately connectible to their source. * * * * * Viewing the facts in the light most favorable to Benne, we- 7 - conclude that she may not have become aware of the possibility that Defendants’ negligence could have caused her injuries until as late as 1992, when she filed suit. Notwithstanding her lack of knowledge of the exact scientific nature of her injuries, until 1989, by as early as 1987, she knew her injury was associated with excessive typing on Defendants’ keyboards. The statute of limitations commenced running at that time. Accordingly, Benne’s claims should have been brought no later than 1989. We hold that the district court correctly concluded that Benne’s cause of action was barred by the Kansas two-year statute of limitations. As above indicated, in her amended complaint, Merica alleged that she had experienced stress symptoms caused by her use of office machines manufactured by the defendants “[c]ommencing at the time of her initial employment” with Southwestern Bell. In her deposition Merica stated that she first experienced pain related to bilateral carpal tunnel syndrome in early 1989 and that within six months thereafter she attributed her symptoms to typing. Further, she stated that in November, 1989, she was diagnosed with bilateral carpel tunnel syndrome. Merica did not file her complaint until October 16, 1992, and accordingly her action is barred by the two year Kansas statute of limitations. Having concluded that Merica’s complaint was time-barred by the Kansas two year statute of limitations, we need not here consider whether Merica’s complaint was filed within New York’s three year statute of limitations. Judgment affirmed.

ENTERED FOR THE COURT- 8 - Robert H. McWilliams Senior Circuit Judge