Schlumberger Technology Corporation v. Michael Pasko and Peggy Pasko ( 2018 )

IN THE SUPREME COURT OF TEXAS
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NO. 17-0231
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SCHLUMBERGER TECHNOLOGY CORPORATION, PETITIONER,
v.
MICHAEL PASKO AND PEGGY PASKO, RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS
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PER CURIAM
This appeal concerns application of the statute of limitations in a personal injury case.
Michael Pasko was injured when he was exposed to and burned by caustic chemicals while working
at an oil well site. Less than two years later, Pasko sued several defendants because of his injuries.
He joined Schlumberger Technology Corporation as a defendant more than two years after he was
injured, but less than two years after he was diagnosed with cancer that he attributed to the chemical
exposure. In response to Schlumberger’s motion for summary judgment based on limitations, Pasko
urged that he sued Schlumberger timely because his cancer was inherently undiscoverable and that
his cause of action did not accrue until he discovered the cancer. The trial court granted
Schlumberger’s motion for summary judgment. The court of appeals applied the discovery rule and
reversed, concluding that Pasko raised a genuine issue of material fact about whether he knew or
should have known the nature of his injury before his cancer diagnosis. Because the court of appeals
erred in applying the discovery rule, we reverse its judgment and reinstate that of the trial court.
Pasko was employed by JC Fodale Energy Services, LLC, a contractor on the location where
an oil well was being drilled. Schlumberger was also a contractor at the well site. Pasko alleges that
on May 6, 2013, a Schlumberger employee instructed him to clean up a spill of fracking liquid
backflow but did not provide him with protective equipment. Pasko alleges that the liquid contained
toxic fracking chemicals, including a substance called “U028,” and that during the course of his
cleaning the spill, most of his body came into contact with the liquid. Pasko claims that the
chemicals caused his skin to burn and that within hours, he was in severe pain. He was seen at
several hospitals and finally received treatment in San Antonio. In the days immediately following
the incident, Pasko’s symptoms were severe enough that he claims to have feared for his life. On
September 12, 2013, a little over four months after being exposed to the liquid, Pasko was diagnosed
with squamous cell carcinoma cancer.
On May 5, 2015, Pasko sued several entities and individuals for causing his injuries, but he
did not name Schlumberger as a defendant until he filed his first amended petition on August 13,
2015. In his first amended petition, Pasko alleged that Schlumberger negligently allowed the toxic
chemical U028 to leak into the liquid he was asked to clean and that Schlumberger’s employee
negligently instructed him to clean the liquid without providing proper protective equipment or
instructions. Pasko sought to recover from Schlumberger for the cancer––a “new injur[y] and
illness”––which developed as a result of his exposure.
Schlumberger filed a motion for summary judgment, arguing that Pasko’s claims against it
were untimely under the two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE § 16.003(a).
Pasko filed a response to Schlumberger’s motion as well as a second amended petition. In the
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amended petition, he asserted that limitations were tolled by the discovery rule until at least August
6, 2015, which he alleged was the earliest date he could have known of Schlumberger’s negligence.
Pasko also alleged that his injuries were inherently undiscoverable and that his delay in suing
Schlumberger was a result of several of the defendants’ fraudulent concealment of information
regarding the accident, including information about which entity had supplied the U028. Pasko
attached several exhibits to his response. In its reply, Schlumberger requested the trial court to
consider several of Pasko’s exhibits as well as his second amended petition in support of its motion.
The trial court granted Schlumberger’s motion for summary judgment.
The court of appeals reversed and remanded. ___ S.W.3d ___ (Tex. App.––Corpus Christi
2016). As characterized by the court of appeals, Pasko made three arguments: (1) the trial court
considered untimely evidence from Schlumberger; (2) Schlumberger did not disprove each element
of the discovery rule; and (3) a genuine issue of material fact existed as to whether the statute of
limitations was tolled by fraudulent concealment. Id. at ___. The appeals court addressed only the
second argument because it was dispositive. Id. at ___. In addressing the discovery rule, the court
discussed the accrual date for a “latent occupational disease” cause of action, which the court stated
was not “until a plaintiff’s symptoms manifest themselves to a degree or for a duration that would
put a reasonable person on notice that he or she suffers from some injury and he or she knows, or
in the exercise of reasonable diligence should have known, that the injury is likely work-related.”
Id. at ___ (quoting Markwardt v. Tex. Indus., Inc., 325 S.W.3d 876, 887 (Tex. App.––Houston [14th
Dist.] 2010, no pet.)). The court concluded that Schlumberger had not proved that as a matter of law
Pasko (1) knew or should have known as of May 6, 2013, that he suffered from a latent occupational
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illness, and (2) was aware of Schlumberger’s alleged wrongful conduct before he was diagnosed
with cancer. Id. at ___.
Schlumberger argues that the court of appeals erred by applying the “latent occupational
disease rule,” which Schlumberger describes as an offshoot of the discovery rule. According to
Schlumberger, a personal injury claim accrues when a claimant sustains a known, discernable injury,
even if the injury is not “complete” and even if the alleged “complete” injury is not ascertainable
until later. Thus, Schlumberger reasons, Pasko’s entire claim against it accrued on May 6, 2013, and
was barred by limitations when he joined Schlumberger as a defendant on August 13, 2015.
Schlumberger claims that the court of appeals erred by applying the discovery rule to delay the
accrual date because one of the discovery rule’s threshold elements––an “inherently undiscoverable”
injury––was not met. Schlumberger points out that not only did Pasko incur a known, acute injury
on May 6, 2013, but his cancer was discovered well within the limitations period.
Pasko characterizes Schlumberger’s arguments as an attempt to avoid its burden to produce
evidence negating the discovery rule. According to Pasko, the court of appeals correctly held
Schlumberger to its burden to prove as a matter of law that Pasko knew or, in the exercise of
reasonable diligence, should have known of his cancer before August 15, 2013. Pasko further
argues that it does not matter whether the court of appeals applied the discovery rule or the latent
occupational disease rule because either would require Schlumberger to produce evidence negating
it as a matter of law, which Schlumberger failed to do. Pasko also maintains the evidence supporting
Schlumberger’s motion is legally insufficient and that Schlumberger was not entitled to rely on the
evidence attached to Pasko’s response or his pleadings.
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A trial court’s decision to grant summary judgment is subject to de novo review. Shell Oil
Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015). Courts review the record “in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against
the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). “Undisputed evidence may
be conclusive of the absence of a material fact issue, but only if reasonable people could not differ
in their conclusions as to that evidence.” Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). A
defendant moving for summary judgment on the affirmative defense of limitations bears the burden
of conclusively establishing the elements of that defense. KPMG Peat Marwick v. Harrison Cty.
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). This includes conclusively establishing when
the cause of action accrued. Id. In cases in which the plaintiff pleads the discovery rule, the
defendant moving for summary judgment on limitations bears the additional burden of negating the
rule. See id.; Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998). Defendants may do this by
either conclusively establishing that (1) the discovery rule does not apply, or (2) if the rule applies,
the summary judgment evidence negates it. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217,
223–24 (Tex. 1999).
Texas Civil Practice and Remedies Code section 16.003(a) mandates that suits for personal
injury must be brought no later than two years after the day the cause of action accrues. Ordinarily,
the legal injury rule dictates that accrual occurs when “a wrongful act causes a legal injury, even if
the fact of injury is not discovered until later, and even if all resulting damages have not yet
occurred.” Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016). Absent some
exception, such as the discovery rule, injuries that arise or develop after the legal injury are still
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deemed to have accrued on the same date as the legal injury that caused them. See Childs, 974
S.W.2d at 36 (“In most cases, a cause of action accrues when a wrongful act causes an injury,
regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur.”).
However, to avoid the sometimes “shocking results” caused by application of the legal injury rule,
an exception is recognized: the discovery rule. See Comput. Assocs. Int’l, Inc. v. Altai, Inc., 918
S.W.2d 453, 457 (Tex. 1996). The discovery rule delays accrual until the plaintiff “knew or in the
exercise of reasonable diligence should have known of the wrongful act and resulting injury.” S.V.
v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). A related doctrine, the latent occupational disease rule, defers
accrual until “a plaintiff’s symptoms manifest themselves to a degree or for a duration that would
put a reasonable person on notice that he or she suffers from some injury and he or she knows, or
in the exercise of reasonable diligence should have known, that the injury is likely work-related.”
Childs, 974 S.W.2d at 40. Courts applying either the discovery rule or the latent occupational
disease rule must determine when a plaintiff knew or, in the exercise of reasonable diligence, should
have known she has been injured.
Here, the summary judgment evidence and the pleadings establish that (1) Pasko sustained
severe burn injuries to his body when he came into contact with backflow liquids on May 6, 2013;
(2) he knew immediately that he had been burned by the liquids and sought medical treatment; and
(3) he knew that Schlumberger’s employees assigned him to the cleanup job without providing
protective equipment. Schlumberger established conclusively that pursuant to the legal injury rule,
Pasko’s cause of action accrued that day.
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The court of appeals based its holding, in part, on Schlumberger’s failure to offer evidence
“suggest[ing] that Pasko was aware of Schlumberger’s alleged wrongful conduct before he was
diagnosed.” ___ S.W.3d at ___. But whether the discovery rule applies turns on whether the injured
person is aware that she has an injury and that it was likely caused by the wrongful acts of another.
See S.V., 933 S.W.2d at 4. It does not turn on whether the injured person knows the exact identity
of the tortfeasor or all of the ways in which the tortfeasor was at fault in causing the injury. See
Childs, 974 S.W.2d at 40. Nor does it turn on when the full effects of the injury became known or
developed. See id. at 41. In this case, Pasko knew he was injured by the fluids and that he had not
been provided safety equipment to protect him from coming into contact with them. It does not
matter, for purposes of when his cause of action accrued, that he did not develop, or learn that he
had developed, cancer until four months later. See ExxonMobil Corp. v. Lazy R Ranch, LP, 511
S.W.3d 538, 542–43 (Tex. 2017) (“[A] claim accrues when injury occurs, not afterward when the
full extent of the injury is known.”); In re Jorden, 249 S.W.3d 416, 422 (Tex. 2008) (“Texas law
has never required that a plaintiff know all the essential facts before a cause of action exists. To the
contrary, a cause of action accrues . . . when a claimant learns of an injury, even if the rest of the
essential facts are unknown.”); see also Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 651 (Tex.
2000) (holding that under the “single action rule,” providing plaintiffs with separate causes of action
for separate diseases arising from a defendant’s single breach would be “incompatible” with the
Court’s “transactional approach” for res judicata).
In reaching its conclusion, the court of appeals discussed the accrual of a cause of action
where a latent occupational disease is involved. ___ S.W.3d at ___. It noted Pasko presented
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evidence that he did not know his cancer––which the court termed a “latent disease”––was work
related until months after the incident, and that Schlumberger failed to prove Pasko was aware of
Schlumberger’s alleged wrongful actions before his cancer was diagnosed. Id. at ___. We disagree
that the latent occupational disease rule applies in this case. When we first announced the rule, we
cabined in the circumstances under which it would apply: “Unlike traumatic injury cases, a plaintiff
who suffers from a latent injury or disease typically does not and cannot immediately know about
the injury or its cause because these injuries often do not manifest themselves for two or three
decades following exposure to the hazardous substance.” Childs, 974 S.W.2d at 38. As discussed
above, Pasko’s injuries are not of a latent type: he immediately knew that the fluids were burning
him, even though the full effects of his exposure were not immediately known. Many injuries result
in the injured person developing more extensive problems or diseases than are at first apparent. But
those developmental types of problems or diseases do not move the injury into the category of a
latent occupational disease. There was nothing latent about what was happening to Pasko or his
injury. Accordingly, to the extent the court of appeals incorporated the latent occupational disease
analysis into its decision, it erred.
Pasko also complains that the trial court improperly considered Pasko’s own summary
judgment evidence against him. Pasko argues that Schlumberger was not entitled to rely on his
summary judgment evidence because Schlumberger did not serve it on Pasko at least twenty-one
days prior to the hearing on Schlumberger’s motion. See TEX. R. CIV. P. 166a(c) (requiring
affidavits supporting a summary judgment motion to filed and served at least twenty-one days before
the hearing on the motion). According to Pasko, Schlumberger was required to seek leave of court
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to submit new evidence less than twenty-one days before the hearing, and to reset the hearing to no
sooner than twenty-one days after it filed its reply relying on Pasko’s evidence. We disagree. Rule
166a(c) plainly provides for the court to consider evidence in the record that is attached either to the
motion or a response. Wilson v. Burford, 904 S.W.2d 628, 629 (Tex. 1995). Schlumberger was
allowed to rely on, and the trial court could consider, the evidence and pleadings Pasko filed.
The court of appeals did not address Pasko’s argument that the defendants’ fraudulent
concealment produced the delay in his bringing suit against Schlumberger. However, Pasko does
not urge that the judgment of the court of appeals should be affirmed on that basis. Nor does he pray
that if we reverse the court of appeals judgment, then we should remand the case to that court for
it to consider the fraudulent concealment argument. Accordingly, we neither address the argument
nor remand the case to the court of appeals for it to consider it.
We grant Schlumberger’s petition for review. Without hearing oral argument, we reverse
the court of appeals’ judgment and reinstate that of the trial court. TEX. R. APP. P. 59.1.
OPINION DELIVERED: April 13, 2018
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