AIKMAN v. ATEX, INC

We concur with the Second Circuit in In re Repetitive Stress Injury Litig. ( 11 F.3d 368, 373, reh granted in part 35 F.3d 637, reh denied 35 F.3d 640) that the factors listed in Johnson v. Celotex Corp. ( 899 F.2d 1281, 1285, cert denied 498 U.S. 920 [asbestos litigation]; see also, Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352) are an appropriate guideline in deciding whether repetitive stress injury claims should be joined together. We agree with the IAS Court that all of the factors — common worksite, similar occupation, similar time of exposure, similar injury, status of disclosure on each claim, and representation by the same attorney — are present here. Any possibility of jury confusion was mitigated by the IAS Court's decision to impanel four separate juries ( see, In re Joint E. S. Dist. Asbestos Litig., 125 FRD 60, 67). No other demonstrable prejudice is shown in the case which, as the IAS Court explained, "is limited to four plaintiffs * * * who allege injuries caused by one defendant's negligent and improper design, production, manufacture and sales of a limited number of keyboards to [plaintiffs' common employer] * * * and identical theories of liability under [a single jurisdiction's] laws" ( comparing In re Repetitive Stress Injury Litig., supra; cf., Malcolm v. National Gypsum Co., 995 F.2d 346, 351-352, supra).

Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Tom, JJ.