that the scanner required the plaintiff to move items across it did not give rise to a duty to warn. The plaintiff's injuries arose not from the design of the scanner, because the scanner itself did not dictate how the plaintiff scanned the items. Objects were merely manually passed over it. Likewise, the fact that Olga Finley performed repetitive manual work while using the keyboard suggests that a duty to warn should not attach to such activities simply because those activities could, like the activity involving the scanner in Creamer, cause CTS.
The Creamer court stated that "the relative efficiency of a machine is not relevant to defective design. For example, a manual typewriter is not unreasonably dangerous simply because an electric typewriter might require less physical exertion by a user." This reasoning was also accepted by the United States District Court, Middle District of Louisiana, in Hopkins v. NCR Corp., 1994 U.S. Dist. LEXIS 17273, No. 93-188-B-M2 (M.D. La. 1994). The Hopkins court concluded that a contrary holding would necessitate a warning on any object that involves extended manual manipulation inherent in the ordinary use of the object. The court expanded on Creamer's analogy by citing sports equipment, computers, video games, remote controls, calculators, musical instruments, appliances, garden tools, writing utensils, kitchen utensils, and workman's tools as all potentially falling under the umbrella of such a holding. Additionally, a California Superior Court in Brust v. Apple Computer, Inc., No. 95-0200 (July 27, 1995), similarly dismissed a case involving an allegation that a keyboard's design caused the plaintiff to develop CTS. See also Little v. NCR Corp., No. 1:93-cv-1555-FMH, at *20 (N.D. Ga., Dec. 7, 1995).
Plaintiffs posit that the above cases are inapposite. Plaintiffs essentially rely on trivial distinctions among Hopkins, Creamer, and the instant case, and then seek to support their reasoning with a state court decision from Minnesota. For example, plaintiffs contend that Creamer involved only a supermarket scanner and not a computer keyboard. But the principle underlying the Creamer opinion is not limited to the particular machine used. It is that the relative efficiency of one machine does not render it unreasonably dangerous simply because less physical exertion is required of another, more modern machine.
Plaintiffs' reliance on Urbanski v. IBM Corp., First Judicial District, County of Dakota, State of Minnesota, Docket No. 19-C2-93-8285 (Dec. 27, 1994), is neither persuasive nor instructive. There, in denying summary judgment for the defendant, the court found factual issues regarding defective design of the keyboard. But the court's decision somewhat surprisingly devotes only one sentence to Daubert. Although the defendant argued that the plaintiff's experts could not establish the requisite causation, the Urbanski court appears to have assumed "cause" by stating that it would, in a later memorandum, address Daubert arguments. The Urbanski court concluded that plaintiff's expert testimony would be permitted subject to timely and appropriate objections. Aside from the fact that Urbanski is not as persuasive as Hopkins and Creamer, it seems insufficient to rely on an assurance by the Urbanski court that an adequate explanation for admitting the expert testimony would be forthcoming.
Finally, plaintiffs cite to many articles concerning injuries resulting from keyboard use. However, the articles by themselves cannot form the basis upon which one could decide causation. See Brust, supra. In the absence of a controlled study, they constitute only anecdotal material and not reliable proof in this particular case.
C. Implied Warranty and Negligence Claims
Plaintiffs do not oppose NCR's assertion that the claims of breach of implied warranty and negligence are inapplicable to this case. Consequently, NCR is entitled to summary judgment on both claims.
D. Conspiracy Claim
To establish a civil conspiracy claim, plaintiffs must show the existence of an agreement between NCR and another to commit an unlawful act or a lawful act by unlawful means, and an overt act in furtherance of the agreement resulting in damage. Hampton v. Hanrahan, 600 F.2d 600, 620-21 (3d Cir. 1979). Neither an unlawful act nor unlawful means used to commit such an act can reasonably be gleaned from the submitted pleadings, affidavits, and depositions. Thus, NCR is entitled to summary judgment on the conspiracy claim.
E. Loss of Consortium Claim
Robert Finley seeks compensation for loss of consortium resulting from Olga Finley's development of CTS. Loss of consortium is a derivative claim which depends for its sustenance upon a viable tort claim of the spouse. Reilly v. Prudential Property and Casualty Insurance Co., 653 F. Supp. 725 (D.N.J. 1987). Because NCR has been awarded summary judgment on all of Olga Finley's claims, Robert Finley, as her husband, has no foundation from which to derive a loss of consortium claim.
For the foregoing reasons,
IT IS ORDERED on this 22nd day of January, 1996 that defendant NCR's motion for summary judgment is GRANTED.
JOSEPH H. RODRIGUEZ