Childs v. Haussecker, Nos. 97-0231

CourtSupreme Court of Texas
Writing for the CourtHANKINSON, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, ENOCH, SPECTOR, BAKER and ABBOTT
Citation974 S.W.2d 31,41 Tex.Sup.Ct.J. 1101
Docket Number97-0324,Nos. 97-0231
Decision Date24 September 1998
PartiesProd.Liab.Rep. (CCH) P 15,376, 41 Tex. Sup. Ct. J. 1101 Jerry P. CHILDS and Childs & Bishop, Inc., Petitioners, v. Joseph HAUSSECKER and Gail Haussecker, Respondents. HUMBLE SAND & GRAVEL, INC., et al., Petitioners, v. Jose L. MARTINEZ, et ux., Respondents.

Page 31

974 S.W.2d 31
Prod.Liab.Rep. (CCH) P 15,376, 41 Tex. Sup. Ct. J. 1101
Jerry P. CHILDS and Childs & Bishop, Inc., Petitioners,
v.
Joseph HAUSSECKER and Gail Haussecker, Respondents.
HUMBLE SAND & GRAVEL, INC., et al., Petitioners,
v.
Jose L. MARTINEZ, et ux., Respondents.
Nos. 97-0231, 97-0324.
Supreme Court of Texas.
Argued Jan. 6, 1998.
Decided July 3, 1998.
Rehearing Overruled Sept. 24, 1998.

Page 33

Gregory J. Lensing, Charles T. Frazier, Jr., Dallas, for Petitioners in No. 97-0231.

Robert G. Taylor, II, George E. Cire, Jr., Cletus P. Ernster, III, Houston, for Respondents in No. 97-0231.

Paul J. Holmes, Joe Michael Dodson, Gordon R. Pate, Beaumont, Stephen Connell Ashley, Odessa, James L. Ware, George P. Pappas, Richard A. Sheehy, Raymond T. Matthews, Timothy J. Hogan, Jacqueline M. Houlette, William C. Book, Jr., Houston, Timothy Yeats, Big Spring, W. Bruce Williams, Midland, David Brill, Houston, for Petitioners in No. 97-0324.

Greg Thompson, M. Diane Dwight, Lance P. Bradley, Beaumont, Robert E. White, Odessa, Jill S. Chatelain, Beaumont, for Respondents in No. 97-0324.

HANKINSON, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, ENOCH, SPECTOR, BAKER and 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 Haussecker v. Childs, Joseph and Gail Haussecker sued Jerry P. Childs and Childs & Bishop, Inc., for legal malpractice. The Hausseckers alleged that Childs had negligently and erroneously advised them that the statute of limitations barred their silicosis-

Page 34

related claims. The trial court granted summary judgment for Childs on the grounds that the Hausseckers' claims were in fact time-barred when they consulted with Childs soon after receiving a confirmed silicosis diagnosis on April 3, 1990. The court of appeals reversed and remanded, holding that a fact question about whether the Hausseckers' claims were barred by limitations before they consulted with Childs precluded summary judgment. 935 S.W.2d 930.

In Martinez v. Humble Sand & Gravel, Inc., Jose Martinez sued numerous manufacturers and suppliers of sandblasting equipment and materials, claiming he contracted silicosis from his work as a sandblaster. The trial court granted summary judgment for the defendants on all claims. The court of appeals affirmed in part and reversed and remanded in part, holding that a fact question about when Martinez should have discovered the permanent nature of his injury precluded summary judgment. 940 S.W.2d 139.

Applying the rule we have crafted to these causes, we conclude that in Childs, summary judgment was improper. Initially, Haussecker diligently consulted several doctors about the cause of his injuries, but was repeatedly assured that his symptoms were not work-related. Childs offered no summary judgment evidence indicating whether Haussecker continued to consult doctors from 1978 to 1988 or, assuming he had not, whether Haussecker's idleness during this time kept him from discovering that he had an occupational illness. Under these circumstances, a material fact question exists regarding whether Haussecker discovered or, through reasonable care and diligence, should have discovered before April 1988 that he likely suffered from an occupational disease. In Martinez, we conclude that summary judgment was likewise improper. Although Martinez failed to exercise reasonable diligence by not consulting a doctor until eleven months after he was on notice of an injury that he suspected might have been work-related, Humble Sand & Gravel did not present any evidence to establish as a matter of law that Martinez could have discovered he had a work-related injury had he conducted a diligent investigation. Accordingly, we affirm the court of appeals' judgments in both Childs and Martinez.

I

Haussecker and Martinez suffer from the occupational disease known as silicosis. This disease results from "occupational exposure to and inhalation of silica dust over a period of years" and is "characterized by a slowly progressive fibrosis of the lungs." STEDMAN'S MEDICAL DICTIONARY 1422 (25th ed.1990); see also 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

Page 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 lymphoma or 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 bronchoscopy on Haussecker's lung in June 1968, Dr. Morales diagnosed Haussecker with 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 and others had health problems similar to his own, Haussecker formed his own opinion that he too suffered from 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. Dr. McKenna performed a lung biopsy in February 1990, and diagnosed Haussecker with work-related 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...

To continue reading

Request your trial
335 practice notes
  • Janvey v. Democratic Senatorial Campaign Comm. Inc., Civil Action No. 3:10–CV–0346–N.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • June 22, 2011
    ...then the start of the limitations period may be determined as a matter of law.” Id. at 352 (citing, inter alia, Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex.1998)). According to the Political Committees, the Receiver reasonably could have discovered the Stanford Defendants' contributions be......
  • Monge v. Rojas (In re Monge), CASE NO. 09-30881-hcm
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • September 5, 2014
    ...an injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur." Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). 477. Here, the Monges assert various causes of action—including breach of contract and breach of fiduciary duty—against Roja......
  • Light v. Whittington (In re Whittington), No. 13-11036
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 19, 2014
    ...duty, "accrue[ ] when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury." Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). As noted above, the Finley Property closing was June 11, 2004; the Hale Property closing was June 15, 2004; the Whitten Proper......
  • In re Briscoe, No. 04-4086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 15, 2006
    ...matter of law if reasonable minds could not differ about the conclusion to be drawn from the facts in the record." Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex.1998) (citation omitted). The statute of limitations applicable to petitioners' claims against the physicians provided in relevant ......
  • Request a trial to view additional results
335 cases
  • Janvey v. Democratic Senatorial Campaign Comm. Inc., Civil Action No. 3:10–CV–0346–N.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • June 22, 2011
    ...then the start of the limitations period may be determined as a matter of law.” Id. at 352 (citing, inter alia, Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex.1998)). According to the Political Committees, the Receiver reasonably could have discovered the Stanford Defendants' contributions be......
  • Monge v. Rojas (In re Monge), CASE NO. 09-30881-hcm
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • September 5, 2014
    ...injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur." Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). 477. Here, the Monges assert various causes of action—including breach of contract and breach of fiduciary duty—against Ro......
  • Light v. Whittington (In re Whittington), No. 13-11036
    • United States
    • United States Bankruptcy Courts. Fifth Circuit. U.S. Bankruptcy Court — Western District of Texas
    • August 19, 2014
    ..."accrue[ ] when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury." Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). As noted above, the Finley Property closing was June 11, 2004; the Hale Property closing was June 15, 2004; the Whitten Pr......
  • In re Briscoe, No. 04-4086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 15, 2006
    ...of law if reasonable minds could not differ about the conclusion to be drawn from the facts in the record." Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex.1998) (citation omitted). The statute of limitations applicable to petitioners' claims against the physicians provided in relevant pa......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT