Johnny Youngblood and Carol Youngblood v. U.S. Silica Company, the Feldspar Corporation, and Unimin Corporation ( 2003 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00020-CV

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JOHNNY YOUNGBLOOD AND CAROL YOUNGBLOOD, Appellants

V.

U.S. SILICA COMPANY, THE FELDSPAR CORPORATION,

AND UNIMIN CORPORATION, Appellees

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 98-1743-B

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          Near the end of his forty years of employment with Kilgore Ceramics, Johnny Youngblood developed respiratory problems. He eventually retired and learned his breathing difficulties were caused by the work-related illness, "silicosis." Youngblood sued his former employer and a number of silicon manufacturers for his injuries. Three of those defendants, U.S. Silica Company, The Feldspar Corporation, and Unimin Corporation (collectively "U.S. Silica"), successfully moved for summary judgment in the trial court, from which Youngblood now appeals. We reverse the judgment.

Standard of Review

          To prevail on a motion for summary judgment, the moving party must establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). When reviewing the trial court's grant of a no-evidence summary judgment, the appellate court must examine the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A trial court errs by granting a no-evidence summary judgment if there exists more than a scintilla of probative evidence raising a material fact. Tex. R. Civ. P. 166a(i). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711.

           U.S. Silica moved for summary judgment based on Youngblood's alleged failure to file suit within the applicable statute of limitations. "A defendant who moves for summary judgment based upon limitations bears the burden of negating the discovery rule at the summary judgment stage." Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 567 (Tex. App.—Texarkana 2000, pet. denied). The discovery rule is an exception to the statute of limitations. As this Court recently stated, the discovery rule

defers the accrual of a cause of action until the plaintiff knew, or through the exercise of reasonable diligence should have known, of the facts giving rise to the cause of action. Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 1994); Moreno, 787 S.W.2d at 351. The discovery rule therefore delays the commencement of the limitations period when the nature of the injury is inherently undiscoverable and evidence of the injury is objectively verifiable. See Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996); Tanglewood Terrace, Ltd. v. City of Texarkana, 996 S.W.2d 330, 337 (Tex. App.—Texarkana 1999, no pet.). These two elements of inherent undiscoverability and objective verifiability balance these conflicting policies in statutes of limitations: the benefits of precluding stale claims versus the risks of precluding meritorious claims that happen to fall outside an arbitrarily set period. S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996). An injury is inherently undiscoverable if it is the type of injury that is not generally discoverable by the exercise of reasonable diligence. See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998), citing Altai, 918 S.W.2d at 455. In order for an injury to be inherently undiscoverable, the injury need not be absolutely impossible to discover. S.V., 933 S.W.2d at 7. The discovery of a particular injury depends on the circumstances of the injury and the plaintiff's diligence.

Haas v. George, 71 S.W.3d 904, 912 (Tex. App.—Texarkana 2002, no pet.). Regarding the discovery rule and the tolling of the statute of limitations in occupational disease cases, the Texas Supreme Court has also stated,

a cause of action accrues whenever 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 v. Haussecker, 974 S.W.2d 31, 33 (Tex. 1998) (emphasis added).

Background Facts

          The evidence, viewed in the light most favorable to Youngblood, showed the following: Youngblood worked at Kilgore Ceramics from 1959 until his retirement in 1999. There was testimony from several sources that Youngblood worked around silicon dust and that (for at least some portion of his employment) he worked in an area in which he was also exposed to asbestos. Youngblood testified he retired because he was no longer able to work due to breathing problems and a continuous cough that was eventually accompanied by excessive phlegm production. According to Youngblood, it was not until December 1997 that he learned he had silicosis.

          During his deposition, Youngblood acknowledged that Kilgore Ceramics required employees to have their chests x-rayed on being hired, and thereafter all employees were x-rayed every two or three years. The record before us shows Youngblood was x-rayed on a periodic basis consistent with this policy. Youngblood also admitted he began experiencing respiratory problems in the late 1980s, though he did not assume his condition was work related.

          In a letter dated March 17, 1992, Allan Goldstein, M.D., the medical director of the organization that performed a chest x-ray test for Youngblood at his place of employment, informed Youngblood his x-ray results were such "that we recommend you consult your physician for further evaluations." The letter, however, did not suggest a medical diagnosis. As a result of Goldstein's letter, Youngblood went to see Gail Stockman, M.D., in Longview. At the time of his deposition in this case, Youngblood could not recall what Stockman told him regarding his tests at her office. Youngblood, however, denied being told by Stockman in 1992 that he had silicosis.

          In 1997, doctors again thought Youngblood's employer-sponsored x-ray appeared abnormal. The company physician suggested Youngblood see his personal physician for further evaluation. That letter, like the one Youngblood received in 1992, did not suggest he had silicosis. According to Youngblood, he was not told he had silicosis and asbestosis until he later saw Peter Petroff, M.D., of Independent Medical Associates, a company hired at that time by his employer to review its workers' x-ray results.

          On August 28, 1998, Youngblood sued a number of defendants, including U.S. Silica, claiming each was liable for contributing to his contracting the disease conglomerate silicosis, a disease he claims resulted from his use of the defendants' products during his employment at Kilgore Ceramics. The trial court ultimately granted summary judgment in favor of U.S. Silica. On appeal, Youngblood contends genuine issues of material fact exist as to whether he knew, or should have known, more than two years before the date he filed the lawsuit that his injuries were work related.

U.S. Silica's Contentions

          "Except as provided by Sections 16.010 and 16.0045, a person must bring suit for . . . personal injury . . . not later than two years after the day the cause of action accrues." Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2002). U.S. Silica alleged Youngblood either received his silicosis diagnosis in 1985 or 1992 or, alternatively, he should have known before 1996 that his respiratory problems were work related and that, by waiting until 1998 to file suit, Youngblood's cause of action was barred by the two-year statute of limitations.

          In defense of the trial court's award of summary judgment, U.S. Silica contends a reasonable person with Youngblood's specific health problems (continuous coughing and shortness of breath), and in his line of work (being continuously exposed to silicon dust), would have been on notice that he or she suffers from some injury and, using due diligence, would have either known, or should have reasonably concluded, that those symptoms were caused by work-related exposure to silicon dust. Then, citing Zacharie v. U.S. Natural Res., Inc., 94 S.W.3d 748, 753 (Tex. App.—San Antonio 2002, no pet.), U.S. Silica contends a singular, definitive, medical diagnosis is not required for the worker to be placed on notice of a work-related injury; "[a] differential diagnosis is sufficient." U.S. Silica then argues (1) Youngblood does not dispute he knew he had a lung disease before August 28, 1996; and (2) Youngblood should have concluded his lung disease was work related before August 28, 1996, because (a) Youngblood's employer had a policy of having employees receive chest x-rays on a regular basis, the clear purpose of which was to screen workers for occupational lung diseases, (b) Stockman's unobjected-to affidavit establishes she made a differential diagnosis of either silicosis or tuberculosis in 1992, (c) Randy Erwin, M.D., recommended entering a differential diagnosis of old tuberculosis or other granulomatous disease, including fungal disease, sarcoidosis, or silicosis on May 16, 1995, (d) Dale Fisher, M.D., had recommended entry of a differential diagnosis of silicosis, old tuberculosis, fungal disease, or sarcoidosis in 1998, and (e) Youngblood reportedly admitted to Andy Abril, M.D., in February 2001 that he had been diagnosed with silicosis about six or seven years earlier.

Youngblood's Contentions

          Youngblood counters by referencing his summary judgment affidavit in which he stated (1) he neither knew, nor could have known, he had silicosis before December 1997 when he was notified by Petroff he had silicosis, and (2) he was never informed of Erwin's 1995 recommendation of a differential diagnosis that included silicosis, nor did he ever say to Abril that he had silicosis. Then, comparing his appeal with the case reviewed by the Texas Supreme Court in Childs, 974 S.W.2d 31, Youngblood contends the doctors' continual failure to diagnose his illness, when combined with Youngblood's own testimony denying knowledge of the work-related injuries before 1997, presents more than a scintilla of evidence of a material fact, thereby precluding summary judgment. The relevant material fact at issue on appeal is whether Youngblood actually knew, or should have known, before 1996 his injuries were a result of his work-related exposure to silicon dust.

Analysis

          "Typically, inquiries involving the discovery rule raise questions to be decided by the trier of fact, although the trial court may determine the commencement of limitations as a matter of law if reasonable minds could not differ about the conclusion to be drawn from the facts set forth in the record." Nugent, 30 S.W.3d at 567. In this case, the medical reports included differential diagnoses of silicosis and tuberculosis (or various other diseases) as early as 1992. The 1992–1996 medical records, however, do not affirmatively indicate Youngblood was ever made aware of these differential diagnoses. For example, Youngblood reported shortness of breath beginning in the late 1980s and early 1990s, with subsequent onset of prolonged coughing in the 1990s. One doctor told Youngblood his condition was probably the result of smoking cigarettes. Youngblood received news of abnormal x-rays in 1992 from Goldstein (a company physician) and from Stockman (Youngblood's personal physician). According to Youngblood, however, Stockman found no evidence of silicotic material, silicosis, or tuberculosis. It was not until he met with Petroff December 5, 1997, that anyone told Youngblood he had silicosis.

          From 1992 until 1997, the doctors hired by Kilgore Ceramics made repeated suggestions, in writing, that Youngblood visit his personal physician regarding the abnormal x-rays. The medical records admitted into evidence show Youngblood usually visited a doctor within two or three months of receiving those letters. We believe Youngblood's pattern of visiting his personal physician soon after receiving letters from company physicians shows Youngblood was exercising due diligence in trying to find the cause of his abnormal x-rays. Yet despite these timely doctor visits, Youngblood consistently stated no one could explain the cause of the breathing difficulties. According to Youngblood, no doctor formally diagnosed him with silicosis until December 1997. There was no evidence that a 1995 unsigned recommendation from Erwin to Surya Lanka, M.D., was either conveyed to Youngblood or acted on by Lanka. Thus, assuming Youngblood's testimony is believable (as we must in reviewing a grant of summary judgment, in which all evidence is viewed in the light most favorable to the nonmovant), this is not a case where the plaintiff failed to exercise due diligence or otherwise had sufficient information that he should have concluded his shortness of breath was related to inhalation of silicon dust.

          The chief contradictory evidence comes from Stockman's 2002 affidavit (made ten years after she met with Youngblood) and anecdotal evidence suggesting Youngblood could have concluded his respiratory difficulties were related to breathing silicon dust for more than forty years during his employment at Kilgore Ceramics (especially when the plant ordered periodic chest x-rays and made employees wear protective masks). But viewing the evidence in the light most favorable to Youngblood, there is more than a scintilla of evidence suggesting Youngblood neither discovered his disease, nor could have assumed his illness was work related, until so informed December 5, 1997. We therefore find the trial court erred by granting a no-evidence summary judgment in this case.

          This holding is consistent with the Texas Supreme Court's expressed policy of not requiring plaintiffs to file suit "based only upon their suspicions about causal connections." Childs, 974 S.W.2d at 43. And our decision is consistent with the Texas Supreme Court's proclamation that the commencement of the statute of limitations cannot be determined as a matter of law if reasonable minds could differ about the conclusion to be drawn from the facts in the record. Id. at 44–46.

          Finally, U.S. Silica dedicated a significant portion of its brief to challenging the affidavits Youngblood submitted as evidence in response to U.S. Silica's motion for summary judgment. The trial court initially, and partially, granted U.S. Silica's objections to these affidavits. The trial court, however, later vacated this order. U.S. Silica did not appeal the trial court's decision to vacate its earlier order and has, therefore, failed to properly present this issue for appellate review. See Tex. R. App. P. 25.1 (perfection of appeal in civil cases complete when written notice of appeal is filed with trial court).

Conclusion

          For the reasons stated, we find, when viewing the evidence in the light most favorable to Youngblood, there is more than a scintilla of evidence Youngblood used due diligence in determining the cause of his respiratory difficulties, but despite such efforts neither knew nor could have known his illness was work related until December 5, 1997.

          We reverse the trial court's judgment and remand the case for further proceedings.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      November 12, 2003

Date Decided:         December 18, 2003