Academic journal article Defense Counsel Journal

Surprise Video Nixes Plantiff's Judgment

Academic journal article Defense Counsel Journal

Surprise Video Nixes Plantiff's Judgment

Article excerpt

A repetitive stress injuries plaintiff lost a $293,385 award because her attorney suddenly came up with a last-minute videotape. Rotolo v. Digital Equipment Corp., 150 F.3d 223 (2d Cir. 1998).

The plaintiff, Jeanette Rotolo, used a computer manufactured by Digital in her job at the Long Island Jewish Medical Center in New York. Her suit in federal district court alleged that as a result of the keyboard operation she developed what generally are described as cumulative trauma disorders (CTDs) or repetitive stress injuries (RSIs). Without notice and apparently to show defective design, her attorney succeeded in getting District Judge Jack Weinsetin to admit into evidence a videotape the attorney had obtained in an undisclosed manner. The video appeared to have been created by Apple Computer Corp, a competitor of Digital, and showed three Apple consultants, two physicians and one engineer, discussing the possible causal connection between computer keyboard use and RSI, as well as Apple's contemplated efforts to ameliorate the problem.

Judge Weinstein told the jury that they might consider the tape as evidence of "what might have been made available by these defendants [sic] and what was in the field to show what their of mind was or should have been. …

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