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DENNIS v. PERTEC COMPUTER CORP.

June 5, 1996

EVETTA DENNIS, et al., Plaintiffs
v.
PERTEC COMPUTER CORPORATION, et al, Defendant.



The opinion of the court was delivered by: FISHER

 FISHER, District Judge

 In this consolidated action filed under the New Jersey Products Liability Act 2A:58C-1 et. seq., defendants Unisys Corporation and Pertec Computer Corporation petition this court to scrutinize the reliability of expert testimony proffered by plaintiffs Evetta Dennis, Thomas Dennis, Patricia Williams, Darlene Smith, Ruth Ann Cast, Estella Vick, Jacqueline Murphy, Yolanda Johnson, Claudia Siegel, Verlee Siegel, Iris Simmons, David Simmons and Sandra Embry, to demonstrate the existence of a causal link between the CMC-108 keyboard and plaintiffs' upper extremity disorders. Defendants wage a vigorous assault on the array of experts deployed by plaintiffs. Defendants attack the adequacy of the experts' credentials and the methodology underlying their conclusions.

 Plaintiffs try to stave off the offensive by marshaling a defense comprised of policy, procedure and substance. In an attempt to avoid a direct confrontation with defendant, plaintiffs initially seek refuge in the "liberal thrust" of the Federal Rules of Evidence. To explain briefly, plaintiffs argue that their proffer satisfies the requirements embodied in Rule 702 and that the jury should make the final determination regarding the weight of their submission. Additionally, plaintiffs contend that defendants failed to meet their burden under the Daubert framework. In the event a direct confrontation is unavoidable, plaintiffs offer a defense of the experts' opinions.

 Plaintiffs are data entry operators and former data entry operators for the State of New Jersey. As data entry operators, plaintiffs were required to manually manipulate the CMC-108 keyboard for approximately seven hours a day. Plaintiffs have different medical histories; however, they are all approximately the same age and have worked for the State as data entry operators for approximately the same amount of time.

 Plaintiffs began experiencing pain in their upper extremities. Each individual plaintiff filed a complaint in state court advancing the legal theories of failure to warn and design defect. The cases were subsequently removed and consolidated.

 To recover under New Jersey's Products Liability Act, plaintiffs must establish causation. In other words, plaintiffs must demonstrate the existence of the necessary legal relationship between their injuries and the design of the CMC-108 keyboard or defendants' failure to warn of the dangerous propensities of the keyboard. In an attempt to satisfy its burden of proof, plaintiffs have solicited the opinion of four experts. Dr. Karl Kroemer, D. Eng., and Dr. David Thompson, Ph.D. have been solicited to render an opinion regarding the relationship between the CMC-108 keyboard and upper extremity disorders. Dr. Craig Rosenberg, M.D., P.C. has been employed by plaintiffs to link the opinions of Kromer and Thompson to plaintiffs' specific injuries. Finally, Dr. Sam Glucksberg, Ph.D. has been retained to render an opinion regarding the sufficiency of warnings. Before turning to the substantive discussion of their opinions, the court will provide a brief profile of each individual.

 Dr. Karl Kromer, D. Eng., is plaintiffs' first expert. Dr. Kromer is an ergonomist who received a doctoral degree in mechanical engineering in West Germany in the late 1950's. Dr. Kromer has worked with various national organizations and also formulated the first keyboard standards in the United States.

 Based on his experience and review of the literature, Dr. Kromer is of the opinion that keystroking has been identified as a significant factor in the development of upper extremity disease in the general population. In short, Dr. Kromer declares that scientists have documented the causal relationship between keystroking and upper extremity disorders in humans as early as the 1920's. Additionally, plaintiffs asked Dr. Kromer to discuss the specific design deficiencies in the CMC-108 keyboard.

 The second expert offered by plaintiffs is Dr. David Thompson, Ph. D. Dr. Thompson receive a doctoral degree in industrial engineering from Stanford University in 1961. He has an outstanding academic record and has been recognized by the scientific community on many occasions. He is currently a Certified Professional Ergonomist and a Professor Emeritus in the Department of Industrial Engineering and Management at Stanford.

 Plaintiffs asked Dr. Thompson to render an opinion regarding the design defects of the CMC-108 keyboard. In addition, plaintiffs asked Dr. Thompson to discuss the relationship between keystroking and upper extremity disorders afflicting the general population. After a review of the literature and the keyboard, Dr. Thompson concludes that poor key placement, lack of tactile feedback, excessive keying forces, and excessive board thickness rendered the CMC-108 keyboard defective. In addition, Dr. Thompson informs that scientists declared that the CMC-108 design was a significant cause of upper extremity disorders more than an decade ago.

 Plaintiffs also submit the opinion of Dr. Craig Rosenberg, M.D., P.C. to establish that the CMC-108 keyboard caused their particular injuries. Dr. Craig Rosenberg is a medical doctor educated at the Autonomous University of Guadalajara, School of Medicine, in Mexico. In 1985, Dr. Rosenberg returned to United States and completed his residency at New York University Medical Center. Dr. Rosenberg is board certified by the American Board of Physical and Rehabilitative Medicine and the American Board of Disability Consultants.

 After conducting an examination of plaintiffs, Dr. Rosenberg states that there is a direct and causal relationship between keystroking and plaintiffs' injuries. Dr. Rosenberg acknowledged the existence of numerous conditions that could have caused or contributed to plaintiffs' conditions; however, in his medical opinion, keystroking was a substantial contributing factor to plaintiffs' injuries. Dr. Rosenberg continued his diagnosis with a discussion of the defects in the CMC-108 which he believed attributed to plaintiffs' condition.

 The last expert is Dr. Sam Glucksberg, Ph. D. Dr. Glucksberg is a professor of psychology at Princeton University. He has devoted a large portion of his academic career to the study language and communication.

 Dr. Glucksberg states that defendants could have reduced plaintiffs' risk of repetitive stress injury by providing adequate and timely warnings regarding the safe use of the keyboard. Dr. Glucksberg continues by discussing the ...


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