USA: RSI Suit May Finally Catch Up with Apple

For the first time ever, a keyboard maker has lost a lawsuit involving repetitive stress injury. And, with dozens of suits pending against it, this could be bad news for Apple.

Apple Computer has been wallowing in negative news for months now, but even more trouble may be headed its way -- this time from the courts.

The potential problem: Lawsuits over RSI, repetitive stress injuries that ostensibly strike frequent users of computer keyboards. Like most computer makers, Apple faces dozens of the suits, a situation the company takes in stride given its record of beating back similar cases in the past.

Cut this is the post-Digital age. More than a month ago, a New York jury ordered Digital Equipment Corp. to pay $5.3 million to a former secretary with carpel tunnel syndrome, a form of RSI.

It was the first loss ever for a keyboard maker in an RSI trial. And it resulted from a crucial break-through in legal strategy. Rather than try to prove that keyboards are defective, lawyers persuaded jurors that Digital should have warned customers about the dangers of continuous typing -- just as it did its own employees.

The evidence Company documents detailing how Digital dealt with employee complaints about RSI at the same time it was telling the outside world that there is no evidence keyboards can cause injuries.

So what does this have to do with Apple?

Internal Apple memos from court files show that the company may be guilty of the same behavior:

• Since at least 1990, Apple employees were complaining to management about crippling pain they suffered while using the Apple keyboard and mouse. One worker talked about how "Apple could do much more for us in terms of providing health and comfort in the workplace."

• In 1990, the company responded to the complaints by producing a videotape showing interviews with injured workers. A written summary says the tape's purpose was "to increase management's awareness and sensitivity to cumulative trauma disorders in the office."

• Then, according to a company memo dated September 1991, the videotape was destroyed.

Why?

"(The legal department) has been concerned about the increasing number of lawsuits against keyboard manufacturers," the memo says. "Since the videotapes and any documents relating to them would certainly be subpoenaed if Apple was sued, it would be better to destroy all the evidence (of) the video."

Apple was sued. Many times. And it won or settled every case by denying any connection between RSI and its computers. On August 3, 1995, for example, a San Francisco Superior court judge dismissed an RSI victim's suit because scientific writings didn't prove that Apple equipment caused her injuries.

But the troubling internal documents only surfaced early last year, and plaintiffs' lawyers say the memos could make all the difference.

"Apple is the worst of all the companies," says Steven Phillips, the New York lawyer who won the Digital case and is handling dozens of suits against Apple and other companies. "Their conduct was depraved."

Apple insists it has done nothing wrong.

"Apple believes that its products are not defective," an Apple spokeswoman said last week, begging the issue of whether the company had a duty to warn customers. "Apple denies any liability and intends to vigorously defend itself against lawsuits alleging so-called repetitive stress injuries."

The spokeswoman also denied that Apple employees have ever complained about RSI, although she said that since 1992 the company has included with its computers a brochure that "attempts to educate people on workplace setup."

The problem is that Digital shipped computers with similar brochures -- and the New York jury said that wasn't enough to warn users about potential problems. Unlike some companies, Apple and Digital don't put warning labels on their equipment.

Only a court can say for sure whether Apple has a Digital problem, but a review of the court documents shows that it is far from the only company facing that risk:

• Worried about the rising costs of workers' compensation claims, Sun Microsystems in Mountain View started training is managers in 1991 to help employees who used keyboards avoid RSI. But it didn't start giving customers ergonomic tips until two or three years ago, when booklets were included with its work stations, says Sun general counsel Michael Morris. About 11 RSI suits are pending against the company, but Morris says "there isn't any scientific evidence to prove a direct link between keyboard and (RSI) symptoms."

• Sacramento's System Integrators -- which made computers for newspapers until 1994 -- was dealing with certain customers' RSI complaints since at least 1984. But it never told other customers or included any warnings with its equipment, and the company now faces several lawsuits.

• There is evidence that IBM, Hewlett-Packard and other companies with lawsuits pending against them dealt with their own employees' RSI problems while failing to warn customers about the risks of using keyboards.

None of this means slam-dunk victory for workers with RSI claims. Each lawsuit is different, and victims must still prove the cause of their individual injuries.

But it sure make for a strong case when a plaintiff can rely on internal memos -- rather than scientific experts -- to show that a company knew the use of its products could cause injuries.

And for a company like Apple, with "millions and millions of pieces of equipment out there, the potential damages have to be measured in the tens of millions of dollars," says Phillips. "If not more."

Reynolds Holding is a Chronicle legal affairs writer.

Reproduced with permission from the author.

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