Benne v. International Business MacHines Corp.

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 6/20/96
TENTH CIRCUIT

____________________

CATHERINE ANN BENNE, )
)
Plaintiff-Appellant, )
) No. 95-3026
v. )
)
INTERNATIONAL BUSINESS MACHINES )
CORP. and GATEWAY 2000, INC., )
)
Defendants-Appellees.
____________________

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 94-1181-PFK)
____________________

Kenneth E. Meiser of Szaferman, Lakind, Blumstein, Watter & Blader,
P.C., Lawrenceville, New Jersey (Arnold C. Lakind of Szaferman,
Lakind, Blumstein, Watter & Blader, P.C., Lawrenceville, New
Jersey, Albert L. Kamas of Render, Kamas & Hammond, Wichita, Kansas
with him on the brief) for Plaintiff-Appellant.
Gerald Sawatzky of Foulston & Seifkin, Wichita, Kansas (Trisha A.
Thelen and Jeff P. DeGraffenreid of Foulston & Seifkin, Wichita,
Kansas, James F. Duncan, Katherine J. Rodgers and Kristine S. Focht
of Watson & Marshall, L.C., Kansas City, Missouri, Josesph A.
D'Avanzo and Maria J. Morreale of Cerussi and Spring, White Plains,
New York with him on the brief) for Defendants-Appellees.
____________________

Before ANDERSON, McKAY, and JONES, * Circuit Judges.
____________________

JONES, Circuit Judge.
____________________

*
Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by
designation.
 Plaintiff Catherine Benne appeals the entry of summary

judgment for Defendants International Business Machines (IBM) and

Gateway 2000 (Gateway) in her diversity personal injury action.

Concluding that Benne had filed her claims past the period allowed

by the appropriate state statutes of limitations, the district

court granted summary judgment for Defendants. For the following

reasons we affirm the judgment of the district court.

I.
From 1979 to 1992, Benne was employed in Kansas as a secretary

and x-ray technician for an orthopaedic physician, Dr. Ernest
Schlachter. Between fifty and sixty percent of Benne's time was

spent typing on either an IBM typewriter keyboard or a Gateway

computer keyboard. As a result of typing extensively over this

thirteen year period on keyboards manufactured by IBM and Gateway,

Benne developed carpal tunnel syndrome and overuse syndrome.
In 1984 Benne developed numbness, tingling, and swelling in

her hands. Dr. Schlachter examined Benne and referred her to a
specialist. Dr. Schlachter subsequently filed a report with the

Kansas Division of Workers' Compensation that indicated he was

retaining Benne as an employee despite knowing that she suffered

from "overuse syndrome of both arms." Appendix at 157. In 1985,

Schlachter filed an Employer's Report of Accident with the Kansas

Division of Workers' Compensation in which he indicated that Benne
had been injured at work. Id. at 155-56. Schlachter described the

injury as "bilateral carpal tunnel tendonitis and left entrapment

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neuropathy at the elbow of the ulnar nerve." Id. at 156. The

report cited the cause of the accident as "repetitive use typing,

filing, and other office work." Id. at 385. Benne typed this

report and therefore knew of its contents.

Benne's symptoms intensified in 1987. Dr. Schlachter

confirmed that the aggravation of Benne's condition was caused by

an increase in Benne's typing responsibilities. On November 9,

1988, the Workers' Compensation Fund was ordered to pay Benne

because Dr. Schlachter had knowingly retained a handicapped
employee and, but for her prior injuries, Benne would not have

suffered permanent impairment.
Benne alleges that the nature of her injuries changed in 1989.

As part of a motion for reconsideration of the district court's

ruling on summary judgment, Dr. Schlachter submitted an affidavit

claiming that Benne sustained new and qualitatively different

injuries on and after December 18, 1989. His conclusions were
based on "new and qualitatively different symptoms from those

[Benne] had complained of on or prior to December 18, 1989."
Appendix at 385.

In 1992, Benne and thirteen other plaintiffs filed tort

actions against IBM and Gateway in the Eastern District of New

York. Benne asserted negligence and products liability claims,

alleging that negligence in the design of Defendants' keyboards

caused her repetitive stress injuries. Benne's case was
consolidated with other repetitive stress injury cases. See In re

Repetitive Stress Injury Cases, 142 F.R.D. 584 (E.D.N.Y. 1992).

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Subsequently, the Second Circuit reversed the district court and

deconsolidated the cases. In re Repetitive Stress Injury

Litigation, 11 F.3d 368 (2d Cir. 1993). After the deconsolidation

order, Defendants moved to transfer Benne's case to the District of

Kansas, where the injuries arose. The district court granted the

motion and the case was transferred.

Defendants moved for summary judgment on the theory that

Benne's action was barred by the New York statute of limitations.

Applying the conflicts of law principles of New York, the
transferor state, the district court determined that to be timely,

Benne must have brought her claim in time to satisfy both the New
York and Kansas statutes of limitations. The district court then

found that Benne's action was brought outside of the time limit

permitted by either state's statute. Accordingly, the district

court entered summary judgment for Defendants. Benne filed a

motion for reconsideration based upon the submission of new
affidavits. The district court denied the motion.

Benne now appeals, raising the following issues regarding the
district court's grant of summary judgment: (1) whether the

district court erred by applying the New York conflicts of law

statute; (2) whether the district court erred in finding that

Benne's action was time barred by the Kansas statute of

limitations; and (3) whether the district court erred in finding

that Benne's action was time barred by the New York statute of
limitations. Benne also appeals the denial of her motion for

reconsideration, alleging that the district court abused its

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discretion.

II.

We review the entry of summary judgment de novo, applying the

same standard used by the district court. Henderson v. Inter-Chem

Coal Co., 41 F.3d 567, 569 (10th Cir. 1996). Summary judgment is

proper where the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits,

if any, show there is no genuine issue as to any material fact, and
that the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). In considering a motion for summary
judgment, the court must examine all evidence in a light most

favorable to the opposing party. McKenzie v. Mercy Hosp. of

Independence, Kansas , 854 F.2d 365, 367 (10th Cir. 1988).

A.
We first resolve whether the district court properly used the

New York statute of limitations, the transferor state, and whether
Defendants waived the New York statute of limitations as a defense

to Benne's claims.

Pursuant to Defendants' request, the district court granted a

change of venue from the Eastern District of New York to the

District of Kansas. See 28 U.S.C. § 1404. The rule is settled

that when a district court grants a venue change pursuant to 28
U.S.C. § 1404, the transferee court is obligated to apply the law

of the state in which the transferor court sits. Van Dusen v.

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Barrack, 376 U.S. 612, 639 (1964); see also Ferens v. John Deere

Co., 494 U.S. 516, 523 (1990). This rule applies whether the

plaintiff or the defendant initiates the change in venue. Ferens,

494 U.S. at 523.

Benne alleges that despite the Supreme Court's ruling in Van

Dusen, Defendants are estopped from pleading the statute of

limitations as a defense, because Defendants argued in the district

court that the substantive laws of Kansas applied. Benne correctly

notes that in some instances, defendants may be estopped from
pleading the statute of limitations. For example, when a plaintiff

is induced by fraud, misrepresentations, or deception to refrain
from filing a timely action, a defendant may be estopped to plead

the statute of limitations as a defense. Simicuski v. Saeli, 377

N.E.2d 713, 716 (N.Y. 1978).

Even if the defendants argument's in the New York district

court for application of Kansas substantive law could require a
change from New York to Kansas statute of limitations, the doctrine

of equitable estoppel would be inapplicable here. Benne filed her
action in New York. At the time she filed her suit, she had notice

of both the applicable New York and Kansas statutes of limitation.

Now, she would have the court apply the Kansas statute of

limitations because of arguments Defendants made before the

district court. Benne's choice of New York on both the substantive

tort issues and the accompanying statute of limitations was not in
any manner affected by the actions of Defendants. Neither

Defendant induced her to file her action in New York rather than

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Kansas. All that the Defendants have been able to accomplish is a

change in venue. For precisely this type of case, the Supreme

Court has concluded that the substantive laws applicable to the

case will not change by the Defendants transfer of venue. Benne

simply has failed to demonstrate how the doctrine of equitable

estoppel is in any manner designed to grant relief to a plaintiff

in these circumstances.

Giving effect to Benne's arguments would squarely contradict

the reasoning employed by the Supreme Court in Van Dusen and
Ferens. In Van Dusen, the Supreme Court reasoned that a venue

transfer initiated by the defendant should not deprive the
plaintiff of the laws of the forum that the plaintiff had selected.

Van Dusen, 376 U.S. at 635-36. The Court noted that the

legislative history of § 1404(a) "certainly does not justify the

rather startling conclusion that one might `get a change of law as

a bonus for a change of venue.'" Id. at 636. Allowing a change of
law to accompany a change of venue, the Court opined, would violate

the principles of the Erie doctrine. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938). The Court held it must "ensure that

the `accident' of federal diversity jurisdiction does not enable a

party to utilize a transfer to achieve a result in federal court

which could not have been achieved in the courts of the State where

the action was filed." Id. at 638.

Furthermore, in Ferens, the Supreme Court held that when a
plaintiff initiates a change of venue pursuant to section 1404, the

substantive law of transferor court's state, including statutes of

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limitations, will apply throughout the litigation. Therefore, the

law of the transferor court must apply, regardless of who initiates

the change. The rule articulated in the Ferens and Van Dusen

decisions prevents either party from shopping for better

limitations law after the case is filed.

We agree with the district court's rejection of Greve v.

Gibraltar Enters., Inc. , 85 F. Supp. 410 (D.N.M. 1949), the main

case on which Benne relies. Like the district court, we question

its applicability to the present case. Greve, a 1949 decision,
involved a defendant's motion for a change of venue from the

District of New Mexico to the District of Colorado. Since the
plaintiff originally brought the action in New Mexico, the

defendant pleaded the New Mexico statute of limitations. The

district court in Greve was faced with the task of interpreting §

1404 for the first time. The court suspected that with a transfer

of venue under § 1404, only the place of trial changed, not the
rights of the parties or any of the underlying substantive law. In

doing so, the district court anticipated the Supreme Court's
interpretation of § 1404 in Van Dusen and Ferens. However,

concerned that it may have misinterpreted § 1404, the court ruled

in the alternative that the defendant had waived application of the

Colorado statute of limitations. In the hearing on the venue

transfer motion, the defendant stated in open court that it would

not frustrate plaintiff's action in the event of a transfer to
Colorado by pleading the since expired Colorado statute of

limitations. The district court stated that in the event it had

8
misinterpreted § 1404, it could rely on defendant's promise not to

plead the more restrictive Colorado statute to ensure that the New

Mexico statute of limitation would be applied.

Benne analogizes her case to Greve. She contends that a

number of assertions made by Defendants before the district court

amounted to a waiver of the application of the New York statute of

limitations. For example, Defendants stated in their brief in

support of their venue transfer motion:

Clearly, New York substantive law cannot apply to these
actions. The plaintiffs, their employments, their
injuries and the witnesses have no connection whatsoever
to New York. Thus the law governing each plaintiff's
prima facie case, the availability of defenses, issues of
contributory negligence and punitive damages vary from
state to state.

Appendix at 253. Benne also points to assertions in two affidavits

accompanying this motion which state Defendants' understanding that

the substantive laws of New York did not apply to Benne's action.

We must discount Benne's reliance on Greve for two reasons.
First, Greve is factually distinguishable from Benne's case. In

Greve, the defendants clearly stated that they would not plead the
Colorado statute of limitations. The court held this was a waiver

of the defense of the Colorado statute of limitations. In

contrast, the general assertions made by Defendants in this case

fall short of an absolute waiver. Furthermore, when Defendants in

this case argued that Kansas substantive law should apply, the

record reveals that Defendants were making a conflicts of law
argument, not an argument over the general applicability of New

York or Kansas law. Instead of arguing, as Benne would have the

9
court believe, that Kansas substantive law and statutes of

limitation should apply outright, Defendants are arguing that the

proper application of New York substantive law would eventually

lead to the application of Kansas substantive law. This argument

is based upon New York's conflict principles that call for the

application of another state's substantive law in tort actions

where the wrong occurs in another state. Cooney v. Osgood Mach.,

Inc., 612 N.E. 2d 277, 281-82 (N.Y. 1993); Schultz v. Boy Scouts of

America, Inc., 480 N.E. 2d 679, 682 (N.Y. 1985). Even were a
defendant permitted to waive the statute of limitations of the

transferor state in favor of the statute of the transferee state,
we cannot consider the arguments made by Defendants in this case to

be such a waiver of New York substantive law. The Defendants in

this case were clearly arguing that within the framework of the

laws of the New York, the laws of Kansas would control.

Second, as the district court noted, the continued validity of
the court's alternative holding Greve is questionable after the

Supreme Court's decisions in Van Dusen and Ferens. The law of
these cases is clear. The transferee court has the obligation to

apply the law of the transferor state, regardless of the attempts

of the parties to change which body of substantive law applies to

their claims. To the extent Greve is inconsistent with this

doctrine, as announced in Ferens and Van Dusen, it is overruled.

This is not to say that a defendant can never waive application of
a statute of limitations in a venue transfer case. As mentioned

above, if a defendant, either by fraud, deceit, or

10
misrepresentation, prevented plaintiff from filing a timely claim

in the transferor state, then estoppel or waiver of the statute of

limitations is possible. Further, a defendant may always choose

not to plead the defense of the statute of limitations, in which

case, the limiations perioed would not become an issue. Note,

however, that this would be a matter strictly involving the

application of the law of the transferor state, not a matter of the

defendant's actions causing the court to resort to the statute of

limitations of the transferee state.
Ultimately, we find it is curious that Plaintiff Benne, who

had the opportunity to choose the forum of New York, would now
argue that the laws of New York should not apply to her claim.

Benne's peculiar position aside, the holdings of Van Dusen and

Ferens require us to affirm the district court's application of the

New York statute of limitations.

B.

Having determined that the district court correctly held that

the New York statute of limitations applied to the transferred

case, we now turn to whether the district court correctly applied

the New York statute.

When applying the New York statute of limitations to an action
arising outside of the state, the first step is to refer to the

"borrowing statute." See N.Y. Civ. Prac. L. & R. § 202 (McKinney,

1990). The section provides:

An action based upon a cause of action accruing without

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 the state cannot be commenced after the expiration of the
time limited by the laws of either the state or the place
without the state where the cause of action accrued,
except that where the cause of action accrued in favor of
a resident of the state the time limited by the laws of
the state shall apply.

Id. Therefore, to survive Defendants' motion for summary judgment,

Benne's claims must have been timely under both the limitations

periods of New York and Kansas. See Antone v. General Motors

Corp., Buick Motors Div., 473 N.E. 2d 742, 744 (N.Y. 1984) (where

non-residents claim accrued outside of New York, his action must be
timely under both states' limitations periods).

1.
The Kansas statute of limitations provides that an action for

personal injuries must be brought within two years. Kan. Stat.

Ann. § 60-513(a)(4). Such a cause of action:

shall not be deemed to have accrued until the act giving
rise to the cause of action first causes substantial
injury or, if the fact of the injury is not reasonably
ascertainable until sometime after the initial act, then
the period of limitation shall not commence until the
fact of injury becomes reasonably ascertainable to the
injured party . . . .

Kan. Stat. Ann. § 60-513(b). The difficulty in Benne's claim lies
in determining when "the fact of [Benne's] injury" became

"reasonably ascertainable." Id. The leading Kansas case on fact
of injury is Gilger v. Lee Constr. Inc., 820 P.2d 390 (Kan. 1991),

a Kansas Supreme Court case. In Gilger, the plaintiffs suffered

numerous health problems caused by an improperly vented furnace.

The plaintiffs unsuccessfully sought out the cause of their

12
ailments for three years before learning that the furnace was

improperly installed. Plaintiffs investigated a number of avenues

in their search for the source of their recurring illnesses. They

had the furnace checked for gas leaks, increased ventilation in the

room at the direction of an inspector, and removed a bird's nest

from the flue. When their health problems did not subside,

plaintiffs had the furnace inspected twice more. It was not until

an inspection in 1985 that plaintiffs learned the furnace had been

improperly installed. The Kansas Supreme Court reversed a motion
for summary judgment, which had been granted to defendants, holding

that whether the Gilgers' injuries were reasonably ascertainable
under the circumstances before 1985 was a question of fact to be

resolved by a jury.

Benne claims that Gilger should likewise lead to a reversal of

the summary judgment in her case because she did not realize that

the keyboards had been negligently designed until 1992. Benne
acknowledges that she was injured by 1985 and also admits she knew

the cause of her injury was excessive typing on Gateway and IBM
keyboards. She claims, however, that her injuries were not

reasonably ascertainable until 1992 because she had no reason to

believe IBM and Gateway were negligent in their keyboard design

until 1992.

Benne argues that her knowledge that the keyboards caused the

injury would not trigger the statute of limitations until she made
the inference that a negligent design of the product, and not mere

overuse of the product, caused her injury. In making this

13
argument, Benne relies on Hecht v. First Nat'l Bank & Trust Co.,

490 P.2d 649 (Kan. 1971), which was cited by the court in Gilger.

In Hecht, a plaintiff suffered skin damage from a negligently

performed radiation treatment. For a while after the injury, the

plaintiff thought her injuries were merely part of the recovery

process. Her doctor had informed her she was healing as she

should. Finally, when her condition did not improve, plaintiff

sought a second opinion and learned she needed surgery to correct

her injuries. In denying defendant's motion for summary judgment
on the statute of limitations issue, the court stated:

Since the evidence presented, as we see it, is
inconclusive as to what point in time plaintiff's injury
could be said to be substantial or reasonably
ascertainable, we conclude that plaintiff should be
afforded an opportunity to prove that she neither knew
nor could reasonably have been expected to know of
defendant's alleged negligence until the date alleged in
her petition [January 1967]. A summary judgment based on
the premise that plaintiff on March 13, 1966, knew or
could have reasonably ascertained that she had suffered
substantial injury result[ing] from alleged acts of
negligence of defendants necessitated a finding of fact
which was, we believe, in good faith disputed.

Gilger, 820 P.2d at 399-400 (citing Hecht, 490 P.2d at 649).
Benne interprets this language as setting forth the rule that

a plaintiff's knowledge of the cause of her injuries is irrelevant

until she realizes that the designer of the product may have acted

negligently. We do not believe that the Kansas Supreme Court

intended to establish the rule that a plaintiff could be fully

aware of the cause of her injury, yet wait to bring a claim based
upon negligent design some indeterminate time later when the

plaintiff develops the thought that the defendant may have been

14
negligent. Rather we believe the rule from Hecht is intended to

give plaintiffs who suffer from latent or difficult to diagnose

injuries the same advantages as those plaintiffs whose injuries are

immediately connectible to their source.

Benne fails to recognize that no plaintiff ever knows prior to

her suit whether the defendant is negligent. Whether a defendant

is negligent is a matter to be resolved by a jury. Until this

legal determination is made, a plaintiff can only allege negligence

on the defendant's part. The Kansas law does not give plaintiff an
infinite amount of time, after learning the cause of her injuries,

to ponder whether the equipment injured her because of defendant's
negligence or because of other reasons. The plaintiff must take

the initiative within the limitations period to set out to prove

defendant's negligence. Otherwise, claims would survive for such

extensive periods of time that the statute of limitations could be

completely eviscerated.
Kansas' "fact of injury" standard postpones the running of the

limitations period until the time the plaintiff is able to
determine that her injury may be caused by some act of the

defendant. The court stated in denying the summary judgment motion

in Gilger, "there are disputed facts as to when the appellants

realized their health problems were associated with the allegedly

improperly ventilated furnace." Gilger, 82 P.2d at 400 (emphasis

added). In Benne's case, there is no disputed fact as to when she
realized her problems were associated with the keyboards. Benne's

claim is similar to the claim in Friends Univ. v. W.R. Grace & Co.,

15
in which the plaintiff tried to bring a claim for an improperly

installed roof seven years after it began to leak. 608 P.2d 936

(Kan. 1980). The plaintiffs alleged that they did not realize

until two years before they brought their claim that the leaks were

caused by defendant's failure to bond the roofing material to the

substructure and therefore they had not reasonably ascertained the

cause of the leaks. The Supreme Court of Kansas held that

plaintiffs claims fell outside of the limitations period. In

commenting on Friends University in Gilger, the court stated:
"[w]e determined plaintiff's failure to know the exact scientific

nature of the problem did not toll the commencement of the statute
of limitations where it was clearly apparent there was a severe

problem with the roof caused by defective design, materials, or

workmanship in 1970." Gilger, 820 P.2d at 400 (referencing and

citing Friends Univ. 608 P.2d at 941).

Viewing the facts in the light most favorable to Benne, we
conclude that she may not have become aware of the possibility that

Defendants' negligence could have caused her injuries until as late
as 1992, when she filed suit. Notwithstanding her lack of

knowledge of the exact scientific nature of her injuries, until

1989, by as early as 1987, she knew her injury was associated with

excessive typing on Defendants' keyboards. The statute of

limitations commenced running at that time. Accordingly, Benne's

claims should have been brought no later than 1989. We hold that
the district court correctly concluded that Benne's cause of action

was barred by the Kansas two-year statute of limitations.

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 2.

In New York, an action to recover damages for personal

injuries, including strict product liability, must be commenced

within three years from the date the cause of action accrues.

Unlike the Kansas limitations statute, the New York limitations

period commences on the date of injury. N.Y. Civ. Prac. L. & R. §

214 (McKinney 1990); Snyder v. Town Insulation, Inc. , 615 N.E.2d

999, 1000-01 (N.Y. 1993). The injury itself, rather than the

negligent act by defendant or the discovery of the wrong by
plaintiff, marks the date of accrual. Piper v. International

Business Machs., 639 N.Y.2d 623, 624 (N.Y. App. Div. 1996) (citing
Kronos, Inc. v. AVX Corp., 612 N.E.2d 289 (1993)). New York courts

have recently affirmed this rule as it applies to repetitive stress

injuries such as Benne's. See Piper, 639 N.Y.2d at 624; In re New

York County Data Entry Worker Product Liability Litigation, 1994 WL

900221 (N.Y. Sup. Ct. 1994). In Piper the court held that the
limitations period commenced to run when the plaintiff first

experienced symptoms of carpal tunnel syndrome, not when the
symptoms developed into a diagnosable condition. Piper, 639 N.Y.2d

at 623.

The district court found that Benne's injury manifested itself

in 1985, at the latest, when she was diagnosed with overuse

syndrome of both arms, bilateral carpal tunnel tendinitis, and left

entrapment neuropathy at the elbow of the ulnar nerve. Based upon
this diagnosis, the district court did not err in holding Benne's

claim barred by the New York statute of limitations.

17
 III.

After the district court entered judgment for Defendants,

Benne moved for reconsideration pursuant to Federal Rule of Civil

Procedure 59(e). She claimed that certain aspects of her injuries

still made her claim timely under the New York statute of

limitations. We review the district court's denial of this motion

for abuse of discretion. Webber v. Mefford , 43 F.3d 1340, 1345

(10th Cir. 1994).

An exception to New York's strict statute of limitations
exists "where a plaintiff, first injured prior to the three year

statutory period alleges qualitatively different injuries occurring
within the statutory period." Kuechler v. 805 Middlesex Corp., 866

F. Supp. 147, 148 (S.D.N.Y. 1994). The plaintiff may sustain

claims based on the new and distinct injuries. Id. In support of

her claims, Benne submitted an affidavit stating that the symptoms

she suffered after December 18, 1989 were new and qualitatively
different than the symptoms she suffered before that date. Her

physician, Dr. Schlachter also submitted an affidavit attesting to
the same changes in Benne's symptoms.

A Rule 59(e) motion to reconsider should be granted only "to

correct manifest errors of law or to present newly discovered

evidence." Committee for the First Amendment v. Campbell, 962 F.2d

1517, 1523 (10th Cir. 1992) (quoting Hansco Corp. v. Zlotnicki, 779

F.2d 906, 909 (3d Cir. 1985, cert. denied, 476 U.S. 1171 (1986)).
The district court denied Benne's motion, concluding that no

manifest error of law had been committed in the first decision and

18
that the factual statements that Benne submitted were inadmissible

due to their conclusory nature. Based upon the limited scope

provided for granting a motion to reconsider, we hold that the

district court did not abuse its discretion in denying Benne's

motion.

No manifest error of law was committed because the district

court followed New York precedents that establish when the

limitations period commences for a repetitive stress injury suit.

The district court did not depart from established law. Second,
the evidence presented by Benne in her affidavits was not newly

discovered. In the affidavits, Benne and Dr. Schlachter allege the
nature of Benne's injuries changed on or around December 18, 1989.

This information could not have been newly discovered when the

district court granted summary judgment to the Defendants in 1994.

IV.

We therefore hold that the district court neither erred in its

application of the law nor abused its discretion in denying Benne's

motion for reconsideration. For the foregoing reasons, we AFFIRM

the district court's grant of summary judgment for Defendants IBM

and Gateway, as well as the court's denial of Benne's motion for
reconsideration.

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