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



 Marilyn L. Merica,

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

           Defendants-Appellees.




                                  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),



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         This order and judgment is not binding precedent, except under the doctrines of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


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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


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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

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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


                                            -5-
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

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              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

                                             -7-
Robert H. McWilliams
Senior Circuit Judge




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