                                  ___________

                                  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's1 grant of summary judgment.




     1
     The Honorable Dean Whipple, United States District Judge for
the Western District of Missouri.
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.3                The district court
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).




       2
      The Thorns' case was originally consolidated with other
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).
       3
     Pursuant to a joint motion of the parties, the district court
had earlier dismissed the action against Honeywell, Inc.
        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.




                                     -4-
     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




                                     -5-
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




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