### The Honorab le Dean Whipple, United States District Judge for 1 

### the Western District of Missouri. ___________ No. 96-1154

___________ Wesley G. Thorn; Cheri Thorn, * * Plaintiff/Appellants, * * v. * * International Business * Appeal from the United States Machines, Inc., * District Court for the Western * District of Missouri. Defendant/Appellee, * * Honeywell, Inc., * * Defendant. *
Submitted: September 11, 1996 Filed: November 22, 1996

___________ Before BEAM, HEANEY, and MURPHY, Circuit Judges.

___________ BEAM, Circuit Judge.
This products liability action requi res us to decide the appropriate sta tute of limitations governing a repetitive stress injury clai m originally filed in New York and transferred to Missouri. For the reasons discus sed below, we find that New York’s three-year limitations perio d applies an d that the claims are time-barred. We therefore affirm th e district court's grant of summary judgment. 1

### The Thorns' case was originally consolidated with othe r 2 

### pendin g keyboard product liability actions. The consolidatio n orders were subsequently vacated. See In re Repetitive Stres s Injury Litigation , 11 F.3d 368 (2d Cir. 1993). Pursuant to a joint motion of the parties , the district court 3 

### had earlier dismissed the action against Honeywell, Inc. I. BACKGROUND

Wesley Thorn worked for the State of Missouri for eight years

. During that time he typed on various Internation al Business Machines (IBM) computer keyboards. Wesley testified at his deposition and throug h interrogatories that he first experienced discom fort in his arms in August of 1988. The symptoms became more persistent and intense, until Wesley wa s diagnosed with repetitive stress injuries (RSI) in 1992.
The Thorns filed this diversity suit in New York on January 29, 1993, seeking compensation for Wesley’s injuries and Cheri’s loss of c onsortium. 2 On motion of IBM, the Thorns' action was transferred to the United States Dis trict Court for the Western District of Missouri. See 28 U.S.C. § 1404(a). After much discovery, IBM moved for summary judgment on th e ground t hat the Thorns' claims were time-barred. The district cour t 3 granted that motion. The Thorns appeal.

II. DISCUSSION

We re view the district court's grant of summary judgment de novo , applying the same sta ndard as the district court and examining the record in the light most favorable to the nonmoving party. Barge v
. Anheuser-Busch, Inc. , 87 F.3d 256, 258 (8th Cir. 1996). Summary judgment is appropriate when the record reveals that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matte r of law. Disesa v. St. Louis Community College , 79 F.3d 92, 94 (8th Cir. 1996).

### -3-

A. Choice of Law

The statute of limitations from the transferor court govern s diversity cases transferred to another federal venue. "[T]he transfere e district court must . . . apply the state law th at would have been applied if there had been no change of venue." Van Dusen v. Barrack , 376 U.S. 612 , 639 ( 1963). This rule applies regardless of which party initiated th e change in venue. Ferens v. John Deere Co. , 494 U.S. 516, 524-25 (1990). Thus, Van Dusen mandates application of New York law in this case.
The Thorns concede this general rule , but claim that IBM is estopped from asserting New York’s limitations period. They rely on footnote numbe r 27 in Van Dusenin which the Court explains prev ious trial court practice. Van Dusen , 376 U.S. at 631. This observation does not constitute a directive to lower courts. The Thorns also rely on Greve v. Gibralta r Ente r., Inc. , 85 F. Supp. 410 (D.N.M. 1949). The 1949 Greve decisio n pre cedes and is inconsistent with both Van Dusen and Ferens and i s therefore unreliable precedent. We find no other support for the Thorns’ position. See Benne v. IBM , 87 F.3d 419, 424 (10th Cir. 1996) (refusing to apply estoppel approach in similar circumstances).
Furthermore, the facts of this case do not evoke estoppel princ iples. The Thorns point out that IBM argued in its transfer motion that the case should be decided und er Missouri substantive law. However, that does not imply a promise not to use traditional conflict of law principles to apply transferor state procedural rules. The Thorns do not argue any detrimenta l reliance on a belief that Missouri law would govern the case upon transfer

. Finally, it was the Thorns, not IBM who chose to file their claim in New York. They should not now be heard to complain about application of the law of the forum they themselves chose. The Thor ns’ claim must, therefore, be analyzed under New York law.

### -4- B. New York’s Statute of Limitations

New Yo rk’s borrowing statute supplies the limitations rule fo r injuries occurring ou tside the state. N.Y. C.P.L.R. 202 (McKinney 1990). That statute requires the Thorns’ claims to be t imely filed under both New York and Missouri law. Id. IBM concedes that the Thorns’ claims wer e filed within Missouri 's statutory period, so only the New York statute is at issue here.

Under New

York law, actions for personal injuries must be commenced within three years of the accrual of the cause of action. N.Y. C.P.L.R. 214(5) (McKinney 1990). In most cases, a cause of action accrues on the date of the injury. See Snyder v. Town Insulation , 615 N.E.2d 999, 1000 (N.Y. 1993). However, a special "discovery rule" applies to injurie s caused by "latent effects of exposure to any substance or combination of substances, in any form, upon or within the body." N.Y. C.P.L.R. 214-c (2 ) (Mc Kinney1990). For injuries covered by 214-c, the limitations perio d does not begin to run until the injury is discovered. Id. The Thorn s assert that their injuries fall within the discovery rule.

In Wallen v. American Tel. & Tel. Co

. , Index No. 12336/91 (N.Y. Sup. Ct. 1992), aff'd , 601 N.Y.S.2d 796 (N.Y. App.), leave to appeal denied , 62 5 N.E.2d 590 (1993), the court refused to apply 214-c to RSI cases. New Yor k state courts have followed Wallen

. Blanco v. American Tel. & Tel. Co. , 64 6 N.Y.S.2d 99 (N.Y. App. 1996). Computer keyboards are not a “substance ” within the ambit of 214-c: Simply put, a keyboard i s not a substance, toxic or otherwise. Plaintiffs' injuries wer e allegedly incurred by direct contact wit h a tangible object, not a substance, and the ter m `substance' was no more meant to encompass a piece of offic e equ ipment than it was meant to include any other ordinar y product.

Id. at 102.

### -5- Much of the Thorns' position rests on criticism of Wallen and it s progeny. They argue that Wallen was ill-conceived and speculate that New York's highest court could reject Wallen when it considers the RSI issue. However, the Thorns’ dissatisfaction with Wallendoes nothing to lessen it s force as New York pre cedent. The Wallen decision is the law of New York, and other state court s applying New York law are bound by it. See , e.g. , Johansen v. Honeywell, Inc. , 642 N.Y.S.2d 459, 460 (N.Y. Sup. Ct. 1994 ) (“[I]t is no longer open to this court . . . to entertain plaintiffs ’ cri ticisms of the Wallen decision. [Its] reasoning is binding on me.”)

.

Al though federal courts are not bound to follow the decisions o f intermediate state courts when interpreting stat e law, their decisions are highlypersuasive and should be followed when they are the best evidence of state law. B.B. v. Continental Ins. Co. , 8 F.3d 1288, 1291 (8th Cir. 199 3). New York courts have uniformly held that RSI claims cannot b e brought u nder 214-c and the Thorns have not persuaded us that thes e decisions do not represent the law of New York. Furthermore, other federa l courts sitting in diversity have concluded that 214-c does not apply to RS I
cases. E.g. , Harriso n v. Olivetti Office USA, Inc. , 1996 WL 529175 at *2 (D.D.C

. 1996) (noting that the District of Columbia’s federal distric t courts have refused t o apply 214-c to RSI litigation transferred from New York). We conclude that the “discovery rule” of 214-c does not apply to the Thorns’ RSI claims.

C. Accrual of the Cause of Action

The next step in statute of limitations analysis is to determin e when the cause of action accrued. In New York "an injury is deemed to hav e occurred for statute of limitations purposes no later than the time that the i njurious process first manifests itself." Wallen , slip op. at 2

. Most recently, a New York federal

### -6-

distr ict court held that a plaintiff’s RSI cause of action had accrue d shortlybefore she began experiencing painful symptoms. Dorsey v. Apple Compu ters, Inc. , 936 F. Supp. 89, 90 (E.D.N.Y. 1996). In Dorsey , Judg e Weinstein first observed that "New York courts a ttempt to strike a balance bet ween the needs of plaintiffs in pursuing a claim, and the needs o f defendants in respond ing without inappropriate delays. . . . [T]he length of time that a plaintiff should have to assert h is claim depends on a nice balancing of policy c onsiderations." Id. at 91 (citations and quotations omitted). Judge Wein stein concluded that under such a balancing approach "`accr ual occurs when the claim becomes enforceable, i.e., when al l elements of the tort can be truthfully alleged in a complaint.'" Id. at 92 (quoting Kronos, I nc. v. AVX Corp. , 612 N.E.2d 289, 292 (N.Y. 1993)).

The Wallenapproach has been reaffirmed by New York appellate c ourts:

In our view, the accrual rule articulated in Wallen [is th e appropriate one.] [I]f a date of first exposure rule applied in cases of repetitive stress injury, a cause of action might be barre d before liability arose. At the same time, under a rule delaying accrual until last use of the product or actual awareness of the nature of the injury, a plaintiff would have the power to put off the running of the Statute of Limitations indefinitely. Fixing th e date of injury at the first onset of sym ptoms deprives plaintiff of that power, but not of a reasonable opportunity to bring her action.
Piper v. IBM , 639 N.Y.S.2d 623, 626-27 (N.Y. App. 1996) (citation s omitted).

Th e uncontradicted evidence indicates that Wesley Thorn’s “firs t onset of symptoms” oc curred in 1988. Id. at 27. Wesley testified that in August of 1988, "I was first starting to get some inkling of symptoms. " Jt. App. at 101. In 1988 he began experiencing "tiredness" in his upper arms and shoulders. He had