Childs v. Haussecker

*48 HECHT, Justice,

joined by GONZALEZ and 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 plaintiffs 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.

[[Image here]]

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?

AI 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 Haus-secker 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 compensa *49 tion 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 eases 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. Haus-secker does not claim to have filed his compensation claim merely because of unfounded suspicions of injury. On the contrary, Haus-secker 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 eases, 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 plaintiffs 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 undiseoverable and the evidence of injury is objectively verifiable” 8 —absent conflicting legislative policies. 9 Our opinions in Computer Associates International, Inc. v. Altai, Inc. 10 and S.V. v. R.V. 11 were intended to make application of the discovery rule a more objective issue. The conflict between the policy of prohibiting stale claims and the policy of providing a plaintiff sufficient opportunity to assert a claim are balanced in the Altai /S.V. prerequisites for applying the discovery rule. As we explained in S.V.:

[F]or the discovery rule to apply a plaintiffs claim must be inherently undiscovera-ble 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. Weaver 12 ], 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 undiseoverable 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 undiseoverable. 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.

. Ante at 43.

. Ante at 42.

. Ante at 42 n. 9.

. Ante at 43.

. Tex. Civ. Prac. & Rem.Code §§ 10.001(3), 10.004(a).

. Tex.R. Civ. P. 13.

. Id.

. Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996); 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).