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Ward v. Westinghouse Canada Inc.

argued submitted san francisco california: June 16, 1994.

CHARLES WARD; GLENNA JO CANUM WARD, PLAINTIFFS-APPELLANTS,
v.
WESTINGHOUSE CANADA, INC.; WESTINGHOUSE ELECTRIC CORPORATION, ENGINEERING SERVICE DIVISION, A DIVISION OF WESTINGHOUSE ELECTRIC CORPORATION; KEY TRONIC CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-91-03242-BAC. Barbara A. Caulfield, District Judge, Presiding.

Before: Alfred T. Goodwin, Harry Pregerson, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Goodwin.

Author: Goodwin

GOODWIN, Circuit Judge:

Charles and Glenna Jo Canum Ward appeal a summary judgment for Westinghouse Canada, Inc. and Westinghouse Electric Corporation (Westinghouse) in the Wards' diversity action for personal injury and loss of consortium. The court concluded that the Wards' claim was barred by California's one-year statute of limitations for personal injury actions, Cal. Civ. Proc. Code § 340(3) (Deering 1991). Ward v. Westinghouse Canada, Inc., 807 F. Supp. 91 (N.D. Cal. 1992). We have jurisdiction under 28 U.S.C. § 1291, and reverse and remand.

I.

From February 1979 to June 1990, Charles Ward worked for Delta Airlines as a reservations agent, spending approximately seven hours a day entering reservations into a computer terminal. He alleges that because of a defect in defendants' computer keyboard and computer system, he developed crippling tendonitis, a type of cumulative trauma disorder.

In his deposition, Ward testified that he first noticed a slight pain in his wrists as early as 1984. He testified that the pain and numbness in his wrists and arms gradually increased in 1988 and 1989. According to Ward, he initially attributed the pain to the many other things that he did with his wrists and arms besides use a computer: driving a car, participating in sports, and carrying heavy items. Clerk's Record ("CR"), Doc. 38, Ward Declaration, Par. 6. On September 6, 1989, Ward complained about pain in his neck, shoulders, arm and hands to his chiropractor, Dr. Mark Whitemyer.*fn1 In the patient information form filled out in connection with his September 6 visit to Dr. Whitemyer, Ward reported his wrist pain and wrote "Carpal tunnel??" CR, Doc. 38, Exh. A. The form also asked patients to indicate whether the medical condition was a work injury; Ward did not circle that response, but instead circled the answer, "Unknown cause." Id.

On October 4, 1989, Ward reported his symptoms to his Delta Airlines supervisor and asked for a referral to a specialist pursuant to his workers' compensation insurance. Ward also called his physician, seeking a referral. According to his physician's office assistant, Ward reported that he was having "problems with his wrist and arm from using [a] computer too much."

On October 16, 1989, Ward visited Dr. Paul Mills, an orthopedist. After examining Ward, Dr. Mills wrote Delta, notifying the company that Ward's injury was work-related and that his history was "compatible with a repetitive overuse phenomenon." Ward testified that Dr. Mills did not advise him to stop using the computer, but merely prescribed anti-inflammatory drugs and recommended physical therapy. CR, Doc. 38, Ward Decl. Par. 7. In his October 16, 1989 letter to Delta Airlines, Dr. Mills informed Delta that he thought Ward could keep working despite his medical condition, but recommended that Ward use wrist splints and change the position of his computer keyboard, among other things.

In March 1990, Ward saw physical therapist Beth Weiss for treatment of his arm and wrist pain. He alleges that Ms. Weiss was the first person to suggest to him that the keyboard might be defectively designed, thereby causing his injuries. On April 5, 1990, Dr. Mills informed Delta Airlines that Ward could no longer work on the computer because it was continuing to injure him. On June 25, 1990, Delta terminated Ward from his position because he could no longer use a computer. On October 16, 1990, the Wards filed this complaint.*fn2

II.

We review a summary judgment de novo to determine whether any genuine issues of material fact exist, viewing the evidence in the light most favorable to the Wards as the nonmoving party. Stevens v. Moore Business Forms, Inc., 18 F.3d 1443, 1446 (9th Cir. 1994).

The parties agree that California Civil Procedure Code § 340(3) supplies the applicable statute of limitations. Under § 340(3), any action for personal injuries, whether based on simple negligence or on a theory of products liability, must be brought within one year of its accrual. An action ordinarily accrues on the date of injury. Jolly v. Eli Lilly & Co., 44 Cal. 3d 1103, 245 Cal. Rptr. 658, 751 P.2d 923 (Cal. 1988). However, under the California delayed discovery rule, "the accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause." Id. at 661 (citation omitted) (emphasis added). In Jolly, the California Supreme Court explained that:

Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. . . . The limitations period begins once the plaintiff "has notice or information of circumstances to put a reasonable person on inquiry." A plaintiff need not be aware of the specific "facts" necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the ...


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