The Honorable 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 requires us to decide the appropriate

statute of limitations governing a repetitive stress injury claim

originally filed in New York and transferred to Missouri. For the reasons

discussed below, we find that New York’s three-year limitations period

applies and that the claims are time-barred. We therefore affirm the

district court's grant of summary judgment. 1
The Thorns' case was originally consolidated with other

2

pending keyboard product liability actions. The consolidation

orders were subsequently vacated. See In re Repetitive Stress

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 International Business Machines (IBM)

computer keyboards. Wesley testified at his deposition and through

interrogatories that he first experienced discomfort in his arms in August

of 1988. The symptoms became more persistent and intense, until Wesley was

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 consortium.2

On motion of IBM, the Thorns' action was transferred to the United States

District Court for the Western District of Missouri. See 28 U.S.C. §

1404(a). After much discovery, IBM moved for summary judgment on the

ground that the Thorns' claims were time-barred. The district court

3

granted that motion. The Thorns appeal.

II. DISCUSSION

We review the district court's grant of summary judgment de novo,

applying the same standard 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 matter

of law. Disesa v. St. Louis Community College, 79 F.3d 92, 94 (8th Cir.

1996). 
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A. Choice of Law 

The statute of limitations from the transferor court governs

diversity cases transferred to another federal venue. "[T]he transferee

district court must . . . apply the state law that 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 the

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 number

27 in Van Dusen in which the Court explains previous 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. Gibraltar

Enter., Inc., 85 F. Supp. 410 (D.N.M. 1949). The 1949 Greve decision

precedes and is inconsistent with both Van Dusen and Ferens and is

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 principles.

The Thorns point out that IBM argued in its transfer motion that the case

should be decided under 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 detrimental

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 Thorns’ claim must, therefore,

be analyzed under New York law.
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B. New York’s Statute of Limitations

New York’s borrowing statute supplies the limitations rule for

injuries occurring outside the state. N.Y. C.P.L.R. 202 (McKinney 1990).

That statute requires the Thorns’ claims to be timely filed under both New

York and Missouri law. Id. IBM concedes that the Thorns’ claims were

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 injuries

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)

(McKinney 1990). For injuries covered by 214-c, the limitations period

does not begin to run until the injury is discovered. Id. The Thorns

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, 625

N.E.2d 590 (1993), the court refused to apply 214-c to RSI cases. New York

state courts have followed Wallen. Blanco v. American Tel. & Tel. Co., 646

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 is not a substance, toxic or otherwise.

Plaintiffs' injuries were allegedly incurred by direct contact

with a tangible object, not a substance, and the term

`substance' was no more meant to encompass a piece of office

equipment than it was meant to include any other ordinary

product.

Id. at 102.
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Much of the Thorns' position rests on criticism of Wallen and its

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 Wallen does nothing to lessen its

force as New York precedent. The Wallen decision is the law of New York,

and other state courts 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’

criticisms of the Wallen decision. [Its] reasoning is binding on me.”).

 

Although federal courts are not bound to follow the decisions of

intermediate state courts when interpreting state law, their decisions are

highly persuasive 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.

1993). New York courts have uniformly held that RSI claims cannot be

brought under 214-c and the Thorns have not persuaded us that these

decisions do not represent the law of New York. Furthermore, other federal

courts sitting in diversity have concluded that 214-c does not apply to RSI

cases. E.g., Harrison v. Olivetti Office USA, Inc., 1996 WL 529175 at *2

(D.D.C. 1996) (noting that the District of Columbia’s federal district

courts have refused to 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 determine when

the cause of action accrued. In New York "an injury is deemed to have

occurred for statute of limitations purposes no later than the time that

the injurious process first manifests itself." Wallen, slip op. at 2.

Most recently, a New York federal
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district court held that a plaintiff’s RSI cause of action had accrued

shortly before she began experiencing painful symptoms. Dorsey v. Apple

Computers, Inc., 936 F. Supp. 89, 90 (E.D.N.Y. 1996). In Dorsey, Judge

Weinstein first observed that "New York courts attempt to strike a balance

between the needs of plaintiffs in pursuing a claim, and the needs of

defendants in responding without inappropriate delays. . . . [T]he length

of time that a plaintiff should have to assert his claim depends on a nice

balancing of policy considerations." Id. at 91 (citations and quotations

omitted). Judge Weinstein concluded that under such a balancing approach

"`accrual occurs when the claim becomes enforceable, i.e., when all

elements of the tort can be truthfully alleged in a complaint.'" Id. at

92 (quoting Kronos, Inc. v. AVX Corp., 612 N.E.2d 289, 292 (N.Y. 1993)).

The Wallen approach has been reaffirmed by New York appellate courts:

In our view, the accrual rule articulated in Wallen [is the

appropriate one.] [I]f a date of first exposure rule applied

in cases of repetitive stress injury, a cause of action might

be barred 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 the date of injury at the first onset of

symptoms 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) (citations

omitted). 

The uncontradicted evidence indicates that Wesley Thorn’s “first

onset of symptoms” occurred 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