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April 10, 1996

PHILIP J. RUSSEK and DEBORAH RUSSEK, h/w, et al., Plaintiffs
UNISYS CORPORATION et al., Defendants

The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Plaintiffs in these consolidated actions *fn1" are all past or present employees of the United States Postal Service ("the Postal Service"). *fn2" They bring state law design defect and failure to warn claims alleging that Multiple Position Letter Sorting Machines ("MPLSM") used by the Postal Service and manufactured by Burroughs Corporation ("Burroughs"), to which defendant Unisys Corporation ("Unisys") is successor-in-interest, caused them repetitive stress injuries ("RSIs"). Defendant Unisys has now moved for summary judgment solely on the grounds that the government contractor defense enunciated by the Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988), and extended to nonmilitary government contractors by the Third Circuit in Carley v. Wheeled Coach, 991 F.2d 1117 (3d Cir.), cert. denied, 126 L. Ed. 2d 150, 114 S. Ct. 191 (1993), preempts plaintiffs' state law claims.

 Plaintiffs have also moved, pursuant to Fed. R. Civ. P. 56(f), for further discovery before the Court decides the summary judgment motion. The Court granted this motion following oral argument. In spite of the additional discovery granted plaintiff, the Court finds that defendant has met its burden of proof of establishing the government contractor defense on the design defect claim, and the motion for summary judgment on that claim will therefore be granted. The Court also holds that Boyle applies to the failure to warn claim and that defendant has established all three elements of the defense on that claim.


 Under Fed. R. Civ. P. 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Normally, the burden is on the nonmoving party to establish a genuine issue of material fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). However, defendant carries the burden of proving each element of the government contractor defense. Carley, 991 F.2d at 1125. Therefore defendant, the moving party, must establish that there is no genuine issue of material fact as to each element of the defense. Id. In other words, defendant "must come forward with evidence on summary judgment which would entitle it to a directed verdict if the evidence went uncontroverted at trial." Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 802 (5th Cir. 1993) (internal quotations and alterations omitted). Only after defendant meets this burden are plaintiffs required to come forward with "significant, probative evidence." Id.


 Plaintiffs were all Postal Service employees at some time between 1976 and the present, and all worked at a mail sorting facility in Bellmawr, New Jersey. Plaintiffs now allege that they suffered RSIs due to their operation of the keyboard on defendant's MPLSMs. Each plaintiff's spouse has also brought a pendent state law claim for loss of consortium.

 RSIs are a variety of repetitive stress-related injuries to the hand, wrist, and arm. Among the most common RSIs are tendonitis, tenosynovitis, carpal tunnel syndrome, and ganglion cysts. (Defendant's Ex. 47 at 1.) The study of how RSIs are caused and how to avoid them is included within the field of "ergonomics," which involves the study of the relationship between people and things.

 The Postal Service uses the MPLSM to sort mail. One MPLSM is approximately seventy-seven feet long and twelve feet high, with twelve operator stations. Mail proceeds along a track in the MPLSM and comes to a brief stop before an operator station, where a Postal Service employee quickly reads the address and types in a code that directs the mail to a sorting bin on the other side of the machine according to its ultimate destination.

 At issue in this case is the operating stations, and specifically the keyboards, utilized on the MPLSMs. The original keyboard on the MPLSMs consisted of two ten-key, piano-style keyboards arranged in two tiers that were used to input street addresses for incoming mail and city and state destinations for outgoing mail. In the 1970's, the MPLSM design was modified by the Zip Mail Translator ("ZMT") system, which accommodated the Postal Service's switch to the use of zip codes for guiding mail. The ZMT consisted of a ten-key piano-style keyboard that allowed operators to sort mail according to zip code.

 Nonetheless, defendant has established through affidavits that the Postal Service controlled the design of the keyboard on the prototype MPLSMs. These affiants have stated that when Rabinow constructed the model MPLSM, it provided its design and engineering drawings to the Postal Service. (Lieske Aff. at P 2.) When the Postal Service awarded the first MPLSM contract to Burroughs, it provided Burroughs with the Rabinow drawings. (Id. at P 4; France Aff. at P 3.) The Postal Service retained final authority over any design changes from these drawings. (Lieske Aff. at P 4; Hurley Aff. at P 7; France Aff. at P 6.) Postal Service and Burroughs employees worked together closely in constructing the prototype MPLSMs. (France Aff. at PP 3, 5.) Once the prototype MPLSMs were installed, the Postal Service conducted substantial testing on these units. (Lieske Aff. at P 6; Hurley Aff. at P 7.) The Postal Service eventually accepted all ten prototypes. (Id.)

 In 1963 or 1964, the Postal Service prepared drawings of the MPLSM, including the keyboard. (Lieske Aff. at P 3 and Attachment "A"; Hurley Aff. at P 8.) In 1964, the Postal Service awarded Burroughs a contract to mass-produce twenty-six MPLSMs. Affiants have stated that Burroughs was required to follow the Postal Service drawings in constructing these MPLSMs, and that Burroughs could not make any unilateral changes to their design. (Lieske Aff. at P 8; Okun Aff. at 4.) Postal Service employees oversaw the construction of the MPLSMs, tested them upon their completion, and finally approved all of them. (Vogel Aff. at PP 8-9.)

 The first written specifications for the MPLSM are dated April 21, 1970. (Defendant's Ex. 10.) Although the specifications do not explicitly address the configuration of the keyboard, they do indicate that all parts are to conform to Postal Service master drawings, (Id. at P 2.4), and list the operator console, keyboard, key pressure adjustment control, and operator chair in an Index of Assemblies. (Id. at PP 3.10.1,,, The specification for the keyboard specifically provided:

Each console will have two keyboards. Both keyboards shall be binary decimal type arranged for two-hand operation having two groups of five keys, and shall be provided as part of the console by the contractor. All keys shall be unmarked, with a smooth concave surface except the two center keys in the lower group which shall be longer and have more depth to index the thumb of each hand and simplify the touch system of the keyboard. A supplemental or- "piggy-back" keyboard mounted above the binary keyboard for direct ZIP code keying will be supplied, installed and connected by the contractor.

 (Id. at P The specifications also contained a section on "Safety Devices," which provided:

The machine shall be furnished with suitable devices as required by the specifications and as shown on the drawings . . . . All special safety devices . . . for protection of operators . . . shall be provided as specified herein, or as shown on the drawings.

 (Id. at P

 Burroughs continued to manufacture MPLSMs pursuant to contracts with the Postal Service until approximately 1986. (Stotler Aff. at P 7.) During this time, the MPLSM was altered to incorporate both the ZMT and the Expanded Zip Retrofit ("EZR") system, which allowed operators to sort mail by nine digit zip codes.

 Plaintiffs' expert, Dr. Rani Lueder, has identified numerous supposed ergonomic design defects in the MPLSM operator station and keyboard. (Plaintiffs' Ex. 12.) He first noted that most aspects of the operator console, such as the operator knee clearance and the keying and envelope slot height, were not adjustable, contrary to ergonomic principles. Furthermore, the keyboard failed to offer arm support. Dr. Lueder also found that the keyboard suffered from poor keyboard feedback, key vibration, inconsistent key force, and poor keyboard design. He also found that MPLSM operators underwent high rates of repetition and received no ergonomic training. Finally, he found that the "sweeping" task that operators performed during their breaks from keying, which consisted of removing mail from the MPLSM sorting bins and further sorting it for ultimate distribution, presented an occupational risk because the height of the envelope bins was not adjustable. Dr. Lueder concluded that all these alleged design defects could contribute to causing MPLSM operators RSIs.

 As early as 1963, the Postal Service recognized the "fatigue and monotony" that could be linked to operating the MPLSM. (Defendant's Ex. 32 at 19.) This study also proposed further study of operator chairs with arm rests. (Id. at 27.) By the late 1960's, the Postal Service recognized the possible ergonomic impact of the MPLSMs, although it did not seem to recognize the possibility of RSIs from use of the keyboard. (See Defendant's Ex. 30 at 13; Defendant's Ex. 31 at 2-3.) *fn3" However, a February 12, 1970, agenda for a Mechanization Committee Meeting of the Post Office Department Bureau of Personnel recognized that

in some cases operators [of MPLSMs] have developed, after years of operating, an arthritic condition in their wrists attributable to sustained suspension of their hands above the keyboard. On doctor's advice they were forced to leave the machine. An arm rest would seem appropriate.

 (Defendant's Ex. 36.)

 In 1976, after "incidental reports from operators throughout the country suggested that there might be a high incidence of chronic trauma (or repetitive motion) disorders" resulting from the operation of the MPLSMs, the American Postal Workers and the National Institute for Occupational Safety and Health ("NIOSH") supported a prospective study of this phenomenon. (Defendant's Ex. 47 at 1.) The report, released in 1981, concluded that the available data "strongly suggests a relationship between experience on the machines and the incidence of chronic trauma disorders," and that "the keying portion of the task would appear to be the most likely cause of such disorders." (Defendant's Ex. 47 at 6.)

 By 1984, the incidence of RSIs among MPLSM operators became high enough that Congress held hearings on the subject. Effects of Carpal Tunnel Syndrome and Tendonitis on Postal Employees: Hearings Before the Subcomm. on Postal Personnel and Modernization of the House Committee on Post Office and Civil Service, 98th Cong., 2d Sess. 98-50 (1984). At these hearings Postal Service officials testified that occupational claims regarding RSIs from MPLSMs did not begin until 1982. Id. at 7. They also indicated that they had "problems" with the NIOSH study, because it was "not a very scientific, objective, or impartial type study." Id. at 8. ...

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