Your FREE and easy resource for all things Texas workers' compensation
At a Glance:
Childs v. Haussecker
July 3, 1998
974 S.W.2d 31
Published Opinion

Childs v. Haussecker

Supreme Court of Texas.

Jerry P. CHILDS and Childs & Bishop, Inc., Petitioners,


Joseph HAUSSECKER and Gail Haussecker, Respondents.

HUMBLE SAND & GRAVEL, INC., et al., Petitioners,


Jose L. MARTINEZ, et ux., Respondents.

Nos. 97–0231, 97–0324.


Argued Jan. 6, 1998.


Decided July 3, 1998.


Rehearing Overruled Sept. 24, 1998.

Attorneys & Firms

*33 Charles T. Frazier, Jr., Dallas, for Petitioners in No. 97-0231.

Cletus P. Ernster, III, Houston, for Respondents in No. 97-0231.

David Brill, Houston, for Petitioners in No. 97-0324.

Jill S. Chatelain, Beaumont, for Respondents in No. 97-0324.


ABBOTT, Justices, joined.

In these two causes we address the correct formulation and application of the discovery rule in the latent occupational disease context. In reaching that formulation, we balance our concern that diligent plaintiffs be able to pursue meritorious claims with the need to prevent Texas courts and defendants from being inundated with premature or speculative claims. Accordingly, we adopt the following rule in latent occupational disease cases: 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.

In 935 S.W.2d 930.

In 940 S.W.2d 139.

Applying the rule we have crafted to these causes, we conclude that in Martinez.


Haussecker and Martinez suffer from the occupational disease known as Texas Employers’ Ins. Ass’n v. Etheredge, 154 Tex. 1, 272 S.W.2d 869, 872–73 (1954) (describing silicosis and its development). Determining when the plaintiffs’ causes of action accrued in these cases is a fact-intensive inquiry that requires us to set forth the chronology in some detail.

Childs v. Haussecker

Joseph Haussecker began working as a sandblaster for AMF Tuboscope in September 1961. Two years later, AMF transferred him to its “pipe pickling” operation because he complained about spitting up blood. Haussecker’s pipe pickling duties involved cleaning used pipe with paraffin, sulphur, oil, and acid. After working as a pickler, Haussecker became a leadman, which required him to perform an assortment of jobs, including sandblasting, coating, and loading. During his time at AMF, Haussecker was exposed to and inhaled significant quantities of silica dust and sand, as well as toxic fumes.

In September 1967, Haussecker began experiencing respiratory problems. Two months later, he sought medical treatment from his family doctor, Dr. E.W. McCullough. Haussecker complained about shortness of breath, wheezing, coughing, and a general feeling of being ill. After taking x-rays and reviewing Haussecker’s employment history, Dr. McCullough prescribed pills to alleviate Haussecker’s wheezing. Dr. McCullough also requested that Haussecker return in six weeks, but Haussecker chose not to return because he “didn’t know if [Dr. McCullough] was going to do anything for [him] or not.”

In December 1967, Haussecker visited Dr. Huffman at the McKnight Hospital in San *35 Angelo.1 After taking x-rays and administering a sputum test, Dr. Huffman informed Haussecker that something was seriously wrong with him and that he would receive a letter in the mail. The letter never arrived. When Haussecker later inquired about the letter, officials at McKnight asked him to return for further testing, which Haussecker did not do.

In May 1968, Haussecker consulted Dr. McCullough for a second time. After taking more x-rays and conducting numerous tests, Dr. McCullough told Haussecker that he had problems related to his prostate gland. That same month, Haussecker reported to Midland Hospital because he had a prolonged fever and was coughing up blood and pus. Dr. McCullough again visited with Haussecker, and, this time, opined that Haussecker suffered from Hodgkin’s disease.

Following Haussecker’s brief stay in Midland Hospital, Dr. Morales, a lung specialist, treated Haussecker at Odessa Medical Center Hospital. After performing a granuloma of the right lung.

Both Dr. Morales and Dr. McCullough told Haussecker that his illness was not work-related. Dr. Morales did advise Haussecker not to return to his job at AMF, however. Further, because one of Haussecker’s co-workers had died of work-related silicosis.

Haussecker was bed-ridden from June 1968 to January 1969. In August 1968, he gave notice to his employer and filed a worker’s compensation claim with the Industrial Accident Board, alleging that he had a work-related disease. The IAB denied his claim.

On November 6, 1968, Haussecker sued AMF’s worker’s compensation carrier, Liberty Mutual Insurance Company. In his petition, Haussecker alleged that the work he performed for AMF had “caused severe and permanent damage to [his] lungs and chest and the glands and soft tissues of the chest, neck, and face, and ha[d] caused [him] to have the disease of silicosis.” Attorney Jerry P. Childs eventually took over Haussecker’s case, but determined he could no longer continue the representation in good faith because, like the two other attorneys who had examined the case, he could not find any evidence relating Haussecker’s health problems to his employment at AMF or a doctor who would provide a diagnosis of silicosis. The suit was dismissed for want of prosecution in 1972.

Haussecker’s health continued to deteriorate. He stopped working in 1978 and began receiving social security disability. Health problems continued to plague him over the next decade.

In May 1988, Haussecker was examined by Dr. McKenna, a lung specialist, while in the hospital for a hand infection. Dr. McKenna informed Haussecker that, based on his symptoms and from Dr. McKenna’s experience with other employees at AMF, he believed Haussecker had silicosis in April 1990.

Armed with a confirmed diagnosis, the Hausseckers met with Childs on April 26, 1990, to determine whether he could reopen Haussecker’s previously-abandoned compensation claim. After reviewing the file and the relevant statutes, Childs told the Hausseckers that too much time had passed for him to be able to do anything about a claim that Haussecker had filed twenty years ago.

In August 1992, the Hausseckers contacted attorney Mike Martin after seeing his name in a local newspaper article about silicosis injuries. Martin, who had represented other *36 clients in silicosis cases, filed a products liability lawsuit on the Hausseckers’ behalf in April 1993. The trial court granted summary judgment on limitations in March 1994 on the basis that the Hausseckers filed suit more than two years after a doctor diagnosed Haussecker with work-related silicosis.

The Hausseckers later filed this legal malpractice suit against Childs and his law firm, alleging breach of fiduciary duty, negligence, gross negligence, and Deceptive Trade Practices–Consumer Protection Act violations. The trial court granted summary judgment for Childs on the grounds that the Hausseckers’ potential claims were barred by the statute of limitations before the Hausseckers met with Childs on April 26, 1990. The court of appeals reversed and remanded, holding that the Hausseckers had raised a fact issue about whether the discovery rule saved their personal injury and loss of consortium claims from being time-barred as of the date they consulted Childs. 935 S.W.2d 930.

Humble Sand & Gravel v. Martinez

Jose Martinez worked as a sandblaster from 1978 to 1984 for ICO, Inc., d/b/a Spincote Plastic Coating Company, and from 1984 to 1986 for LTV. On September 13, 1989, he filed a worker’s compensation claim for “a lung disease arising out of and in the course of his employment.” Martinez stated on his claim form that the disease first manifested itself on August 31, 1989. He later testified in his deposition, however, that he filed the claim only “as a precaution” because he was experiencing minor breathing problems in 1989, and because his brother, who was also a sandblaster, had been diagnosed in 1985 with a work-related lung ailment known as silicosis. Martinez’s employer’s insurance carrier opposed the worker’s compensation claim, which is still pending.

Martinez first consulted a doctor about his breathing problems in September 1990 when his attorney sent him to Dr. Stephen Wiesenfield. Martinez alleges that he could not visit a doctor any sooner because his employer’s compensation insurer refused to pay for his medical treatment, and he could not afford a doctor on his own. Dr. Wiesenfield informed Martinez that something was wrong and recommended a biopsy, but Martinez did not comply because, again, he allegedly could not afford it.

A year later, arrangements were made for Dr. Joseph Viroslav to perform Martinez’s biopsy. On September 23, 1991, Dr. Viroslav wrote Dr. Wiesenfield, informing him that Martinez probably had silicosis.

On August 13, 1992, Martinez sued Humble Sand & Gravel, as well as other manufacturers and suppliers of sandblasting equipment, for products liability, negligence, breach of warranty, and conspiracy. In addition, his two children sued for loss of parental consortium. The trial court granted summary judgment for Humble Sand & Gravel and the other defendants on substantive grounds as to the conspiracy claims, and limitations grounds as to the remaining claims. The court of appeals affirmed as to the breach of warranty and conspiracy claims, and reversed as to the remaining claims, holding that a fact issue existed about when Martinez knew or should have known about the nature of his injury. 940 S.W.2d 139.


A plaintiff must commence a suit for personal injuries within two years after the day the cause of action accrues. See Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex.1994)).

The parties in both causes agree that, in accordance with the principles enunciated in Altai, cases involving latent occupational diseases should be governed by the discovery rule. We likewise agree.

Our courts of appeals have recognized that cases involving latent injuries or diseases sometimes merit application of this rule. See, e.g., mesothelioma caused by asbestos exposure). Indeed, almost every jurisdiction applies some formulation of the discovery rule, either legislatively or judicially, in latent injury and disease cases.2 Compelling reasons explain *38 why most courts have chosen to apply the discovery rule in these cases rather than the theory that a cause of action accrues when a plaintiff is either first exposed or last exposed to a toxic substance.

First, a latent injury or disease is the epitome of the type of injury that is often inherently undiscoverable within the applicable limitations period. See, e.g., Green, Wilson v. Johns–Manville Sales Corp., 684 F.2d 111, 120 (D.C.Cir.1982).

Second, while we are mindful of the important protective purposes served by strict application of statutes of limitations, these purposes are not betrayed by deferring accrual in latent disease cases until an innocent and diligent plaintiff discovers his or her injury and its likely cause. Statutes of limitations help ensure that the search for truth *39 is not impaired by stale evidence or the loss of evidence, and that defendants are guaranteed a point of repose for past deeds after a reasonable period. See, e.g., Wilson, 684 F.2d at 120.

While a diligent plaintiff who allegedly suffers from a latent injury or disease should be able to claim the benefit of the discovery rule, these causes raise questions about the correct formulation and application of that rule in latent occupational disease cases. The insidious nature of these diseases calls for the discovery rule to be defined and applied in a way that requires occupationally-exposed individuals to pursue their claims diligently, without forcing those who suffer no present impairment to file claims prematurely.

In its holdings below, the Eighth Court of Appeals established a new rule of law that expanded the discovery rule as applied in cases involving latent occupational diseases. In Childs, the court of appeals held that the discovery rule defers accrual of a cause of action based on a latent occupational disease *40 until a reasonably diligent person would know what disease is causing his symptoms and that the injury is permanent. 940 S.W.2d at 144. We disagree with these formulations of the discovery rule.

We have previously stated that the discovery rule operates to defer accrual of a cause of action until a plaintiff discovers or, through the exercise of reasonable care and diligence, should discover the “nature of his injury.” See, e.g., Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990).

These principles apply equally in latent occupational disease cases. The characteristics described above that distinguish latent injuries from typical torts merely require us to further refine these well-established principles in the latent disease context to ensure they are applied in a way that is fair to plaintiffs and defendants, and promotes the efficient use of judicial resources. We therefore hold that the approach that best balances the interests implicated in latent occupational disease cases is one that 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.6 *41 Thus, in cases involving latent occupational diseases, “discovery of the injury” should not be equated with a plaintiff’s discovery (1) of the precise name of the disease that is causing his symptoms or (2) that the disease is permanent. The seriousness of a personal injury need not be fully apparent or even fully developed in order to commence the statute of limitations.7

Our holding that a plaintiff need not know that an injury is a permanent condition before it can be deemed “discovered” will neither punish plaintiffs for their justified forbearance nor overburden defendants and courts by encouraging the filing of premature claims, for two reasons. First, accrual will always be deferred until a reasonably diligent plaintiff uncovers some evidence of a causal connection between the injury and the plaintiff’s occupation. Ordinarily, the symptoms of a latent occupational disease will be relatively serious and evident by the time this connection can be established with any degree of certainty. Second, when more than one, separate disease process results from a particular exposure, many courts have concluded that allowing the statute of limitations to run separately for each distinct disease benefits plaintiffs, defendants, and the judicial system by “deterring uneconomical anticipatory lawsuits.”8 Although the issue is not before us, we note that our formulation of the discovery rule for latent disease cases does not necessarily preclude a plaintiff from recovering damages for every disease that ultimately manifests itself as a result of the occupational exposure. For these reasons, imposing an additional “permanency” requirement *42 in our discovery rule jurisprudence is unwarranted.

The parties in these causes propose two opposing bright-line rules for determining under the discovery rule when a cause of action should accrue as a matter of law in a latent occupational disease case. Haussecker and Martinez argue that the statute of limitations does not begin to run until the plaintiff receives a confirmed medical diagnosis of a work-related illness. Childs and Humble, on the other hand, contend that a cause of action should be deemed to accrue as a matter of law when, as in these cases, a plaintiff files a worker’s compensation claim or lawsuit alleging he suffers from an occupational injury. We reject both these proposed rules for the following reasons.

First, the accrual of a cause of action is not dependent on a confirmed medical diagnosis; a plaintiff whose condition has not yet been affirmatively diagnosed by a physician can have or, in the exercise of reasonable diligence could have, access to information that requires or would require a reasonable person to conclude he likely suffers from a work-related illness. See, e.g., AMERICAN LAW OF PRODUCTS LIABILITY § 47:40, at 73 (3d ed.1987) (collecting cases).

Second, although several courts have adopted Childs’ and Humble’s position that the filing of a worker’s compensation claim or lawsuit alleging that the plaintiff has an occupational injury begins the statute of limitations running as a matter of law,9 we believe this rule, while not without some appeal, does not necessarily reflect accurately the plaintiff’s knowledge in every case. Rather than *43 demonstrating what a plaintiff actually knows or should have known, an occupational injury claim or suit may be filed by an overly cautious plaintiff merely because of that layperson’s unfounded suspicions or belief that an injury is related to a particular exposure. Claims based exclusively on such suspicions or beliefs do not justify the filing of a lawsuit. See Tex.R. Civ. P. 13. This being the case, a latent occupational disease cause of action should not be deemed to accrue absent some objective verification of a causal connection between injury and toxic exposure, provided that the failure to obtain that verification is not occasioned by a lack of due diligence. Accordingly, a diligent plaintiff’s mere suspicion or subjective belief that a causal connection exists between his exposure and his symptoms is, standing alone, insufficient to establish accrual as a matter of law.10

Requiring plaintiffs to file suit based only upon their suspicions about causal connections is also undesirable in latent occupational disease cases because, among other things, plaintiffs would be compelled to file premature, speculative claims. The ability of Texas courts and defendants to resolve claims involving serious injury or death would be diluted by the potentially overwhelming number of suits filed by individuals who suffer no present impairment or who have no way of knowing or establishing that their impairment is likely work-related. See Green, Coalition of Cities for Affordable Util. Rates v. Public *44 Util. Comm’n, 798 S.W.2d 560, 562–63 (Tex.1990) (explaining when the doctrines of res judicata and collateral estoppel bar relitigation of claims or issues).


We now apply the latent disease discovery rule principles articulated above to the facts of these silicosis cases. We can reverse the judgments of the court of appeals only if Childs and Humble have negated the discovery rule by establishing that no genuine issue of material fact exists concerning when Haussecker and Martinez experienced symptoms for a degree or for a duration that would have put a reasonable person on notice that he or she suffered from some injury and they discovered or, in the exercise of reasonable diligence should have discovered, the likely causal connection between their symptoms and their occupational exposure. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548–549 (Tex.1985).

Childs v. Haussecker

Childs argues that he is not liable to the Hausseckers for legal malpractice because he gave them correct legal advice when he told them in April 1990 that their claims were barred by the applicable two-year statute of limitations for personal injury claims. Thus, the question in this cause is whether before April 1988 Haussecker knew or should have known in the exercise of reasonable diligence that he likely suffered from an occupational illness.

According to Childs, Haussecker’s claims for silicosis accrued no later than 1968, when he filed his compensation claim, or, at the latest, when he brought suit for compensation alleging that he had silicosis. Haussecker, on the other hand, contends that, under the discovery rule exception, the cause of action did not accrue until April 3, 1990, the date he was diagnosed with silicosis. For the reasons articulated above, neither of these dates establishes, as a matter of law, the date on which Haussecker discovered or should have discovered that he had an injury that was likely caused by his exposure to a hazardous substance in the work place.

Haussecker certainly knew he was injured long before April 1988. In 1963, he complained about spitting up blood. He experienced respiratory problems beginning in 1967, and sought medical treatment for those problems from several doctors. One of those doctors informed him that something was seriously wrong, and another diagnosed his condition as cough).

The date that Haussecker connected or reasonably should have connected his ongoing symptoms to his work at AMF, however, is not so clear. Once Haussecker began having respiratory problems, he attempted to ascertain the cause of his health problems in a reasonably diligent manner by consulting many doctors. During the course of these consultations, several facts came to light that could indicate that Haussecker knew or should have known about the likely cause of his sickness before April 1988. For example, as early as the 1960s, Haussecker suspected he had an occupational illness because several of his co-workers had respiratory health problems similar to his, including one co-worker who had died of silicosis further serves to confirm the suspicions he harbored. Also in 1968, one of Haussecker’s doctors advised him not to return to work at AMF.

But other important facts could cause reasonable minds to differ about what Haussecker should have known about his symptoms by 1988. First, and most importantly, several doctors, including a lung specialist, dispelled Haussecker’s suspicions by telling him in 1968 that his symptoms were not work-related. Instead, Haussecker was told that he possibly had prostate troubles, Hodgkin’s disease. When medical experts consistently reject a layperson’s suspicions concerning the cause of symptoms by expressly refuting an occupational connection or by suggesting exclusively causes that are not work-related, a fact question ordinarily arises about what reasonably should be known by the plaintiff and what further action the plaintiff should have taken, even if the plaintiff knows that co-workers suffer from similar symptoms.11 Second, *46 Haussecker’s workers’ compensation claim and lawsuit were abandoned precisely because there was no evidence to support his contention that he had an occupational disease. And because Haussecker abandoned these claims, the doctrines of res judicata and collateral estoppel do not bar retrial. Finally, we note that Childs offered no evidence about whether Haussecker stopped consulting doctors about his deteriorating health from 1978 to 1988 or whether Haussecker could have been diagnosed with an occupational illness during that time period.

On the present record, a fact question exists not only about the knowledge that should be attributed to Haussecker as of April 1988, but also about whether Haussecker reasonably abandoned pursuing his suspicions that his respiratory problems were work-related from 1978 until 1988 when a doctor for the first time suggested that he might have silicosis. In sum, because reasonable minds could differ about when Haussecker knew or should have known through the exercise of reasonable diligence about a likely causal connection between his symptoms and his occupational exposure, Childs was not entitled to judgment as a matter of law on limitations.

Our conclusion rests exclusively on limitations grounds as presented by this summary judgment record, for that is the sole issue before us. We express no opinion about the merits of the underlying legal malpractice claim.

Martinez v. Humble Sand & Gravel

Martinez sued the various defendants on August 13, 1992, alleging that he contracted silicosis while working as a sandblaster. Thus, under the applicable two-year statute of limitations, we must determine whether Martinez knew or should have known through the exercise of reasonable diligence about his injury and that it was likely work-related before August 13, 1990.

Humble argues that Martinez’s cause of action accrued in September 1989 when: (1) he was experiencing respiratory problems; (2) he knew he had been exposed to silica; (3) he knew that his brother, who was also a sandblaster, had lung disease that first manifested itself on August 31, 1989. Martinez responds that September 1989 is not the proper date of accrual because a silicosis claim had no medical basis at that time, and he filed the claim only because he feared he must do so to avoid being time barred. Martinez proposes that the proper accrual date is September 23, 1991, when a doctor confirmed he had silicosis.

Like Haussecker, Martinez suffered an injury more than two years before filing suit. In 1989, Martinez experienced shortness of breath and other respiratory problems that he associated with his work as a sandblaster. He also filed a workers’ compensation claim that year alleging he had a silicosis, and which he knew was caused by breathing occupational dust.

*47 The discovery rule, however, expressly requires a plaintiff to use reasonable diligence to investigate his injury. See, e.g., silicosis that was caused by inhaling occupational dust. Under these circumstances, a reasonably diligent person would have gone to a doctor about his suspected injuries in September 1989 or soon after. Consequently, Martinez should have sought medical advice diligently rather than sit idly for almost a year.12

Martinez contends that his delay in seeking medical treatment was reasonable because he could not afford to visit a doctor until September 1990. However, we need not decide what affect Martinez’s financial status would have on the tolling of accrual, if any, because the evidence in the record of Martinez’s financial difficulties dates from when Martinez ceased working altogether sometime after March 1992. The record is bare of any evidence supporting Martinez’s contention that he could not afford to pay for a doctor on his own before September 1990.

Although the record reveals that Martinez failed to exercise reasonable diligence once he was apprised of facts that would incite a reasonably diligent person to seek information about his or her injuries and their likely causes, his claim is not time-barred as a matter of law. Humble Sand & Gravel did not offer any summary judgment evidence that a diligent investigation would have led Martinez to discover before August 13, 1990, that he suffered from an occupational illness. Consequently, a fact question remains with respect to whether Martinez knew or should have known through the exercise of reasonable diligence that his injury was likely work-related before August 13, 1990.


Accordingly, we affirm the judgment of the courts of appeals in both Martinez v. Humble Sand & Gravel.

OWEN, Justices, joined.

*48 OWEN, Justices, dissenting.

Illustrating how words can be taken to mean many different things, and therefore almost nothing, the Court holds that a person can allege in a lawsuit and testify under oath that he has a latent occupational disease, and later contend that he did not really know whether he had the disease or not. His pleadings and averments of injury are, according to the Court, only a “factor that, when considered with the other facts and circumstances presented by each case, could give rise to conflicting inferences about the plaintiff’s knowledge of [his] injury and its likely cause.”1 It takes a very loose logic to infer that a person does not know if he has been injured from his assertion, “I have been injured.” It may be true, of course, that he does not know, but it is awfully hard to infer that fact from the contrary assertion.

Latent diseases, because they are latent, often evade detection. A person may suspect that he has a latent disease like silicosis long before his fears can be confirmed. His cause of action for having been exposed to disease-causing agents should not accrue with his first suspicions, but only when he knows or reasonably should know that he has the disease. But when a person files suit alleging that he knows he is diseased, claiming damages against another who must appear and defend against those allegations, he should at least be taken at his word and not be heard to argue later that he did not really know if his allegations were true. From the Court’s contrary conclusion I respectfully dissent.

Joseph Haussecker’s case is sympathetic. For nearly a year after his first respiratory problems, he diligently sought medical treatment. None of the three physicians who treated him diagnosed work-related silicosis. Nevertheless, Haussecker was convinced that his medical problems were due to his having worked around silica dust, sand, and toxic fumes, in part because many of his co-workers had suffered the same problems. So he filed a claim for worker’s compensation benefits, and after the Industrial Accident Board denied the claim, Haussecker filed suit. In that lawsuit Haussecker alleged that he had contracted a disease while at work. Asked at his deposition about the cause of his problems, Haussecker testified as follows:

A Well, I always thought it was work-related.

Q Even as early as September, 1967?

A And I’ve got a good reason for that, too.

Q Well—

A To believe that.

Q To believe that it was work-related?

A Yeah.

* * *

Q You say that you have good reason to believe that it is work-connected. Would you be kind enough to tell us that reason that you think it is work-connected?

A Yes.

Q Please do so.

A Six years—six and a half years I’ve worked down there, we’ve had eight men with lung trouble.

Q Do you know their names?

A I know some of them.

Q Could you give us those names.

A Yes.

Haussecker then named six co-workers. But despite his reasoned belief that his disease was work-related, Haussecker could not obtain confirmation by medical diagnosis. His suit pended four years and then was dismissed for want of prosecution. Sixteen years later, a physician diagnosed Haussecker with silicosis. The attorney who had represented Haussecker in his compensation case advised him that it was too late to reopen his claim. Two years later Haussecker brought this action against his attorney, alleging that his advice was faulty.

Jose Martinez was not as diligent as Haussecker in seeking medical care. He did not consult a physician for a year after he filed a claim for worker’s compensation. The physician recommended a biopsy, but Martinez waited another year before having the procedure. Three years after filing his compensation *49 claim, which still pends, Martinez brought this action against several manufacturers and suppliers of sandblasting equipment for products liability, negligence, breach of warranty, and conspiracy.

Haussecker and Martinez each suffered an adverse summary judgment on the grounds that the claims for work-related injuries were barred by limitations. Defendants in both cases argue that although a cause of action for a latent occupational disease like silicosis does not accrue until the plaintiff knew or reasonably should have known of the injury, that date is established when the plaintiff files suit alleging a work-related disease, as Haussecker and Martinez both did in their compensation actions. The Court acknowledges that defendants’ argument is “not without some appeal”,2 having been adopted by several courts,3 but rejects it because “an occupational injury claim or suit may be filed by an overly cautious plaintiff merely because of that layperson’s unfounded suspicions or belief that an injury is related to a particular exposure.”4 The explanation does not fit either of the present cases. Haussecker does not claim to have filed his compensation claim merely because of unfounded suspicions of injury. On the contrary, Haussecker explained the basis of his claim in his deposition, and he contends now, as he did then, that he was correct. Martinez claims he filed his compensation claim merely as a precaution, but that is belied by his assertion that he filed the claim because of his brother’s similar work-related problems.

But it is the Court’s rule, and not merely its application in the present cases, that is flawed. The rule excuses the filing of baseless lawsuits, despite Chapter 10 of the Civil Practice and Remedies Code, which authorizes sanctions for filing a lawsuit in which any factual allegation lacks evidentiary support,5 and Rule 13 of the Rules of Civil Procedure, which requires sanctions for filing a suit without factual basis.6 Consistent with these requirements, the Court should “presume that pleadings ... are filed in good faith”,7 not that pleadings are often filed on “unfounded suspicions”. Instead, the Court’s rule accepts that baseless lawsuits will be filed, and that they should not mean much.

The Court appears to reason that if a plaintiff is not held to his allegations in a case, he will be less inclined to file suit without good grounds as a mere precautionary matter to preserve his claims. But it seems to me the opposite is true. By holding that a plaintiff’s allegations in a lawsuit are merely a factor to be considered in deciding whether he knew or should have known they were true, the Court promotes, not discourages, the filing of baseless claims. The plaintiff has nothing to lose: if he does not prevail, he may not be foreclosed from making the same claims later. On the other hand, if a plaintiff were to be bound by his allegations in a suit, he would have to think twice about filing it. While I agree with the Court that groundless litigation should be discouraged, I do not think the Court’s rule accomplishes that purpose.

Thus, I would hold that Haussecker’s and Martinez’s claims are barred because they knew or should have known, when they filed their compensation claims, that their allegations in those claims were true—that is, that they suffered from work-related illnesses. I do not disagree with the application of the discovery rule to latent occupational diseases like silicosis, but I have reservations about several important parts of the Court’s opinion. Although I do not join in the result the Court reaches, I offer three other observations on the Court’s opinion.

First, the Court argues that it is fair and equitable to apply the discovery rule to latent occupational disease claims, and it is, but that is not why the rule applies to such claims or to any others. The rule applies when both prerequisites for its invocation are satisfied—which are, that “the nature of the injury *50 incurred is inherently undiscoverable and the evidence of injury is objectively verifiable”8—absent conflicting legislative policies.9 Our opinions in S.V.:

[F]or the discovery rule to apply a plaintiff’s claim must be inherently undiscoverable and objectively verifiable. The concern that meritorious claims will be barred is already taken into account in fashioning these two elements. The two elements strike the proper balance between the beneficial purposes of statutes of limitations and the real concern that a person’s rights may be cut off. To reweigh this concern, which is of course a legitimate one, against the very balance it has produced would be to make it the determinative factor. As we stated in [Robinson v. Weaver12], the “preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in mind.” Allowing late-filed claims that are inherently undiscoverable while requiring objectively verifiable injury reduces the likelihood of injustice in cutting off valid claims while affording some protection against stale and fraudulent claims.13

A disease that is latent is by its very definition inherently undiscoverable. The wrongful exposure to a substance that results in an occupational disease like silicosis is objectively verifiable because the opportunity for exposure can be isolated to the workplace. If this were not so, objective verifiability would present a greater problem. The issue is not, of course, whether the presence of the disease is objectively verifiable; when the disease manifests itself, it is obviously objectively verifiable. Rather, the issue is whether the wrongful exposure is objectively verifiable. In many occupational disease cases it is.

Second, I agree with the Court that symptoms will put a person on notice that he or she has contracted a disease, but other circumstances may do the same. For example, a person may know that he or she has been exposed to radiation at such a level as to cause injury some time before symptoms manifest themselves. A cause of action for exposure to a disease-causing agent certainly accrues no later than the onset of serious symptoms, but I do not read the Court’s statement of the discovery rule to delay accrual in every situation until symptoms manifest themselves.

Finally, the Court’s observation that evidence of latent disease often “improves with the passage of time because the state of scientific knowledge becomes more sophisticated”14 suggests that the discovery rule might defer accrual of a cause of action while scientific knowledge is improving, even if decades passed before science recognized that injury had occurred. Such eventualities are better addressed by statutes of repose than by limitations and the discovery rule.15 *51 But in the absence of a statutory solution, I do not take the Court’s observation to suggest that the discovery rule would necessarily defer accrual of a cause of action for many years while scientific knowledge was improving.

Haussecker and Martinez each alleged that they knew more than two years before asserting their claims in the present cases that they had been injured on the job. I would hold that they are bound by those allegations, and that their current claims are barred by limitations. Accordingly, I respectfully dissent.



The record is unclear about whether Haussecker in fact met with Dr. Huffman at McKnight. When relaying the chronology in his response to defendants’ first set of interrogatories and in his April 1995 deposition, Haussecker does not mention ever visiting Dr. Huffman or going to McKnight. However, Haussecker testified at a deposition in January 1969 to the facts recited in this opinion. Because Haussecker never disavowed his January 1969 testimony about visiting McKnight, we take it as true that these events did in fact occur as Haussecker stated in his 1969 deposition.


See, e.g., Nowotny v. L & B Contract Indus., Inc., 933 P.2d 452, 456 (Wyo.1997)(acknowledging that Wyoming is a “discovery state”).


See, e.g., Statutes of Limitations and the Discovery Rule in Latent Injury Claims: An Exception or the Law?, 43 U. PITT. L.REV.. 501, 517 (1982); Birnbaum, ‘First Breath’s’ Last Gasp: The Discovery Rule in Products Liability Cases, 13 FORUM 279, 285–86 (1977).


See, e.g., Occupational Carcinogenesis and Statutes of Limitation: Resolving Relevant Policy Goals, 10 ENVTL. L.. 113, 123 (1979)(arguing that “[o]f the traditional purposes for a statute of limitations, the evidentiary purpose is unduly harsh and unnecessary as applied to occupational carcinogenesis”).


Glimcher, The Temporal Dimension in Tort Law, 53 U. CHI. L. REVV. 1175, 1216 (1986)(advocating a twenty-year statute of repose in latent injury cases).


See, e.g., Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.1985); see also 2B LARSON, WORKMEN’S COMPENSATION LAW § 78.41(d), at 15–246 (1989)(“[I]t is not necessary for the claimant to know the exact diagnosis or medical name for his condition if he knows enough about its nature to realize that it is both serious and work-connected”)(footnotes omitted).


See Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010, 1014 (1978)(holding that “[t]he statute of limitations begins to run when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition”).


See Gideon v. Johns–Manville Sales Corp., 761 F.2d 1129, 1137 (5th Cir.1985)(applying Texas law)(holding that the plaintiff “could not split his cause of action and recover damages for asbestosis, then later sue for damages caused by such other pulmonary disease as might develop, then still later sue for cancer should cancer appear”).


See Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 385–86 (Tex.Civ.App.—Tyler 1978, writ ref’d n.r.e.)(holding that plaintiff discovered the defendant’s alleged fraud and deceit as a matter of law when he filed an amended pleading in a prior divorce suit that contained a conspiracy allegation against the same defendants).


See Townley v. Norfolk & W. R.R. Co., 887 F.2d 498, 501 (4th Cir.1989)(holding that plaintiff’s suspicions about his injury and its cause warranted summary judgment for defendant).


See, e.g., Vaught v. Showa Denko K.K., 107 F.3d 1137, 1139–1142 (5th Cir.1997)(applying Texas law)(after reading a newspaper article describing the symptoms of eosinophilia myalgia syndrome and its link to the ingestion of L-tryptophan, plaintiff believed she might have EMS because she had similar symptoms and had taken L-tryptophan; relying on a Texas court of appeals case in which the plaintiff suspected she had EMS due to L-tryptophan and was told by doctors she might have EMS, the court held that limitations commenced as a matter of law when plaintiff believed she contracted EMS from the ingestion of L-tryptophan, even though several doctors refuted her suspicions and diagnosed her with fibrositis, reasoning that “there is no exception under Texas law for those who make a diligent inquiry but fail to obtain a positive diagnosis”).


See White v. Owens–Corning Fiberglas Corp., 447 Pa.Super. 5, 668 A.2d 136, 146 (1995)(appellant suffered from shortness of breath, but harbored no suspicion and had no evidence that his condition was work-related; held that mere shortness of breath was insufficient as a matter of law to invoke the duty of due diligence to investigate whether plaintiff had asbestosis).


Ante at 43.


Ante at 42.


Ante at 42 n. 9.


Ante at 43.




TEX.R. CIV. P. 13.




S.V. v. R.V., 933 S.W.2d 1, 6 (Tex.1996).


Little v. Smith, 943 S.W.2d 414, 422 (Tex.1997) (“In the case before us today, clear legislative policies bear directly on whether the discovery rule should be applied. When the Legislature has implemented statutory schemes that inform our decision, we should be guided by the Legislature’s determinations of the weight to be given competing interests.”)


918 S.W.2d 453 (Tex.1996).


933 S.W.2d 1 (Tex.1996).


550 S.W.2d 18, 20 (Tex.1977).


S.V., 933 S.W.2d at 15.


Ante at 39.


E.g., TEX. CIV. PRAC. & REM.CODE §§ 16.008 (ten-year statute of repose in cases involving architects and engineers), 16.009 (ten-year statute of repose, generally, in cases involving contractors), 16.011 (ten-year statute of repose in cases involving surveyors), and 16.012 (fifteen-year statute of repose, generally, in products liability cases).

End of Document