Legal Affairs: Repetitive Stress Injuries
THE ASBESTOS CASE OF THE 1990S?
Nancy Urbanski first noticed pains in her hands in 1991. A secretary and registrar at a high school in Eagan, Minn., she spent many hours each day typing. And she was using her keyboard even more than usual to help launch a new record-keeping system at the school. By the time she sought medical care, Urbanski's affliction, repetitive stress injury (RSI), had caused her permanent damage.
Urbanski, a 30-year-old mother of two, isn't alone. She is one of thousands of similarly afflicted workers who aren't just looking to their employers for satisfaction. They're going after the keyboard makers themselves. In at least 25 states, plaintiffs are suing virtually every keyboard maker for selling flawed products and for not warning them about their potential risks. The scope of the litigation, dubbed the first white- collar mass tort, is so vast that it could become the nightmare for Corporate America in the 1990s that asbestos was in the 1980s. "There's a gargantuan universe of victims," argues Urbanski's lawyer, Steven J. Phillips.
Keyboard makers ensnared in the legal morass include such blue chips as AT&T, IBM, Digital Equipment, and Eastman Kodak. Although the keyboard makers all deny wrongdoing, plaintiffs say manufacturers deliberately concealed the health risks associated with keyboard use--a charge that, if jurors accept, could trigger multimillion-dollar punitive awards in addition to compensatory ones. "Average American workers didn't have a clue about the potential danger," says Phillips, who made a mint from suing asbestos manufacturers. "Manufacturers had an obligation to give them a clue."
TOUGH TITANS. On Jan. 3, the most formidable offensive yet against manufacturers was launched when Urbanski's case against first-time defendants IBM and Apple Computer Inc. opened in Minneapolis. Phillips' firm, Levy Phillips & Konigsberg, has spent years winning millions of dollars from asbestos manufacturers and other businesses. With its financial clout and bevy of lawyers, the firm has put together a case against IBM and Apple filled with scientific experts and previously undisclosed company records. The Urbanski trial could be a defining event: A loss will diminish plaintiffs' hopes for mega-verdicts, while a victory could open the floodgates to endless litigation.
Employers and companies alike are watching the trial closely--particularly since RSIs have become the fastest-growing workplace illness in the U.S. RSIs, which are muscular or skeletal disorders caused by the strain of repetitive motion, are up an astonishing 770% from 10 years ago (chart). Symptoms range from minor aches to disabilities so severe that some sufferers can't hold a knife and fork. "This is by far the No.1 injury we've had to deal with, ever," says Audrey A. Browne, a union lawyer representing 130,000 New York City municipal employees.
Although RSIs primarily afflict blue-collar workers, they are becoming more commonplace--and costly--in offices. Liberty Mutual Insurance Co., the nation's largest workers' compensation insurance carrier, says wrist injuries alone stemming from repetitive motions cost it $50 million in 1989, the most recent year for which figures are available. CTD News, a Haverford (Pa.) newsletter about cumulative trauma disorders, puts the annual workers' compensation tab for all RSIs at $2 billion.
Now, with RSI lawsuits mounting, business costs could multiply exponentially. But collecting millions from corporate titans such as IBM and Apple will be tough. Keyboard makers insist they still don't know what actually causes some workers to suffer injuries while others remain perfectly healthy. Many doctors and scientists contend that a host of factors can cause RSIs, including an individual's medical condition, job satisfication, hobbies, and the ergonomic setup of each person's workstation. "There are people who are being injured," says Robert F. Bettendorf, president of the corporate-sponsored Institute for Office Ergonomics in Manchester Center, Vt. "But the link to the keyboard or anything else has not been made."
Without conclusive scientific proof, manufacturers say it would be impossible for them to craft meaningful warnings for customers or to design so-called safer keyboards. In court papers, IBM calls the plaintiff's charges "ridiculous." IBM states: "Plaintiffs are attempting to place the cart before the horse. . . . They attempt to have a court of law resolve what the science community has not been able to do." Both IBM and Apple decline comment on pending litigation.
In the few suits to make it to court already, inadequate scientific proof has tripped up plaintiffs. Last year, a Texas jury sided with Compaq Computer Corp. when it found that plaintiffs failed to show a link between keyboards and injuries. And an Arizona judge threw out another suit brought by U S West Inc. employees for insufficient evidence.
Phillips says the Urbanski case is different. IBM, for example, has repeatedly stated that its keyboards are safe. But, according to court records, IBM's explanation for numerous occupational injuries to its own employees, filed as part of workers' compensation claims, is extensive keyboard use. From 1987 to 1991, IBM reported a fourfold increase in the number of RSI claims made at 24 of its locations, court records show, as well as a fivefold hike in costs incurred from cumulative trauma disorders. IBM states in court papers that the increase is a reflection of its campaign to better document employee problems, not "a willful disregard for individual welfare."
LIKE TENNIS. As for Apple, plaintiffs plan to show jurors an 11-minute video produced internally in 1991 that features several doctors and engineers discussing RSIs related to the keyboard. In the video, keyboard workers are advised to take breaks from typing and pay attention to pains as they occur. Plaintiffs wonder why Apple would make the video if it believed its product was so benign.
Victor E. Schwartz, a product-liability defense lawyer, says the plaintiffs' arguments will ultimately fail. He believes jurors will blame keyboard users for not exercising common sense. "It's just like when you use a tennis racket over and over again," explains Schwartz. "People know to take a break."
Win or lose, the RSI litigation and surrounding controversy have already had some impact. The government is developing mandatory ergonomic standards due out later this year. Microsoft Corp. and Compaq have recently begun putting warning labels on their keyboards while several companies are selling alternative keyboards they claim are safer than older models. "The computer industry, at least its lawyers, recognizes it needs to take measures to protect itself," says Keith R. Mestrich, an occupational safety and health specialist for the AFL-CIO. The question for workers and companies alike is whether that recognition has come too late. By Linda Himelstein in New York