THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Sunday, March 19, 1995 TAG: 9503170513
SECTION: BUSINESS PAGE: D4 EDITION: FINAL
SOURCE: BY MICHELLE LEVANDER, KNIGHT-RIDDER NEWSPAPERS
DATELINE: SAN JOSE, CALIF. LENGTH: Long : 105 lines
Carolyn Brust, a San Francisco graphics designer, is struggling to begin a career in sales after a painful disability left her unable to draw or type, a condition she blames on an Apple Computer Inc. keyboard and mouse.
Her lawsuit, set to go to trial in San Francisco Superior Court, is among the first of hundreds of such cases crowding court dockets. One New York firm alone represents 1,200 such plaintiffs.
With research on good computer design still in its infancy, and in the absence of federal or state safety regulations on good work practices, the injured like Brust have turned to the courts for redress.
The budding legal crisis has computer manufacturers asserting their innocence in court while simultaneously marketing new ergonomic products to respond to users' concerns.
``It's definitely an awkward position,'' said David Sarvadi, Washington counsel for the Coalition on Ergonomics, an industry group that represents 200 employers and trade groups on these issues.
``The question is, what do you do with all the old ones out there when you have a new and improved version? The short answer is, you are only responsible for the product and the knowledge of (its safety) at the time it was sold.''
Computer equipment manufacturers have been the most frequent legal targets as the injuries have multiplied. Only two have gone to juries so far - and in both cases, the manufacturers have won. Two weeks ago, a jury in Hastings, Minn., found International Business Machines Corp. was not liable for injuries that a former high school secretary said were caused by poor computer keyboard design. (Apple, also a defendant in the case, settled because of what it described as an error by its attorneys.) And last year, Compaq Computer Corp. won a similar case in Texas.
Brust's lawsuit against Apple, like other similar actions, claims the manufacturer knowingly withheld information about the link between its products and injuries to users. Now beginning a career in sales, she must rely on a voice-activated computer and a hired helper to do her computer work.
``The pain, it's always there,'' Brust, 35, said about her injuries. ``I have to modify my life. I have to make judgments throughout the day to keep the pain at a certain level.''
For Brust to triumph, her attorney, a sole practitioner, must successfully face off against the top lawyers of a $9 billion company.
Her lawsuit and others turn on the issue of what manufacturers know about their products and when they knew it. In court, plaintiffs' attorneys have, thus far, unsuccessfully tried to prove that computer makers already knew about injuries caused by their keyboards from medical research, memos by their designers and their own workers-compensation injury-prevention efforts.
IBM's victory in the Minnesota suit, says P.J. Edington, executive director of the Center for Office Technology, ``will hopefully show the keyboard manufacturer doesn't have some odious cabal keeping information from the public. That's what this litigation has been looking for. They have not been able to prove it.''
Steven Kazan, an Oakland labor lawyer, offers another explanation. Earlier lawsuits trying to establish any new arena of liability often suffer from underfinanced plaintiffs' lawyers and a public still uneducated about the issues, he said. That, he predicted, will change.
The litigation has sharpened manufacturers' interest in ergonomics. Large manufacturers such as Apple and Microsoft Corp. now sell their own alternative keyboards, and Compaq sticks labels on its computers, warning about the importance of good computer use. Still, companies are careful about the claims they make for the products they introduce. Apple, for instance, doesn't claim its alternative keyboard will reduce injury.
``Companies like Apple, IBM and Compaq are putting money into this where they weren't five to 10 years ago because it wasn't judged to be a problem,'' said Bob Bettendorf of the Office Ergonomics Research Committee, an industry group. Still, he estimates that computer companies have spent a total of less than $1 million to research ergonomic improvements, a sum he called ``woefully inadequate.''
Dr. David Rempel, who runs the University of California's Ergonomics Program, said the industry traditionally has viewed keyboards as components that add little profit to a sale. Manufacturers, he said, have been reluctant to invest heavily in improvements that will bring minimal returns. Keyboards marketed as ergonomic, he said, are designed based on theory, not proven scientific testing.
``The research budgets lag behind the problem we are facing, and it's a rapidly rising problem,'' Rempel said. Only recently have computer makers attempted to set design standards based on the user's health and safety, he said. In the past, ergonomic designers looked at ``comfort and productivity,'' rather than health risks.
What should the responsible manufacturer do to avoid liability? One piece of advice comes from Kazan, who is suing some manufacturers in court.
He suggests manufactures use their resources to develop solutions, rather than hiring experts to testify that there are no problems with keyboards.
``Lawyers are hired mouths. It's their job to say whatever helps. That's different from lawyers as wise counselor,'' he said. ``They might say, let's do the right thing and prevent injury as best as we can. At the very least we'll cut off our future liability.'' MEMO: ABOUT THE DISORDERS
Repetitive tasks such as computer and assembly-line work and food
processing, experts say, have left thousands with aching tendons and
sometimes crippling nerve damage in hands, arms and wrists.
In the past decade, the number of U.S. workers reporting disorders
associated with repeated trauma has exploded, from 18 percent of all
occupational illnesses in 1981 to 61 percent a decade later.
KEYWORDS: REPETITIVE STRESS SYNDROME OCCUPATIONAL DISEASE
ERGONOMICS by CNB