Rhone-Poulenc v. Steel, 070199

• Decision Date: 01 July 1999
• Docket Number: RHONE-POULEN,INC
• Citation: 997 S.W.2d 217,42 Tex. Sup. Ct. J. 927
• Parties: (Tex. 1999) , PETITIONER v. KENDA STEEL, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, GARRISON STEEL, SAMANTHA GAIL STEEL, AND A/N/F OF GREGORY STEEL, A MINOR CHILD, NOW DECEASED AND ON BEHALF OF THE ESTATE OF GREGORY STEEL, RESPONDENTS NO. 98-0130
• Court: Texas Supreme Court

Page 217

997 S.W.2d 217 (Tex. 1999)

RHONE-POULENC, INC., PETITIONER v. KENDA STEEL, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILDREN, GARRISON STEEL, SAMANTHA GAIL STEEL, AND A/N/F OF GREGORY STEEL, A MINOR CHILD, NOW DECEASED AND ON BEHALF OF THE ESTATE OF GREGORY STEEL, RESPONDENTS

NO. 98-0130

IN THE SUPREME COURT OF TEXAS

Argued October 20, 1998

Decided July 1, 1999

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS

[Copyrighted Material Omitted] JUSTICE BAKER delivered the opinion of the Court in which CHIEF JUSTICE PHILLIPS, JUSTICE ENOCH, JUSTICE OWEN, JUSTICE ABBOTT, JUSTICE HANKINSON, JUSTICE O'NEILL and JUSTICE GONZALES joined.

This summary judgment case involves an alleged latent occupational disease. The sole issue is whether the trial court's case management orders shifted the burden of proof from the movant, Rhone-Poulenc, to the nonmovants, the Steels, in a summary judgment proceeding under Rule 166a(c) of the Texas Rules of Civil Procedure. Because Rule 166a(c) requires a summary judgment movant to prove it is entitled to judgment as a matter of law, we conclude that the orders did not shift the burden from Rhone to the Steels. We also conclude that Rhone's summary judgment evidence did not meet Rule 166a(c)'s burden. Accordingly, we affirm the court of appeals' judgment, albeit for reasons different from those the court of appeals expressed.

I. BACKGROUND

From November 1986 to early 1990, Jeffrey Steel worked at Rhone's Freeport, Texas, rare earths processing facility. At this facility, workers extract rare earth elements from special ores for use in automotive catalytic converters, television picture tubes, and related products. The ores used in the rare earth's separation process contain naturally occurring low-level radioactive material. During processing, the radioactive material is removed from the ore, drummed, and disposed of under state and federal regulatory requirements. Steel was responsible for filtering out the radioactive material and then drumming the waste. He was also responsible for cleaning the filtration system and storing the residue in sumps after electrical or mechanical failures at Rhone. Every three to four months Steel was responsible for cleaning the sumps, which required him to physically remove the waste in buckets and put it in the drums. Steel asserted that during these activities he was exposed to, splattered with, and sometimes ingested the radioactive waste residue.

On October 6, 1989, a physician diagnosed Steel, at age twenty-eight, with anaplastic oligodendroglioma, a rare form of brain cancer. On September 21, 1992, Steel and his wife, Kenda, sued ninety defendants including Rhone. The Steels claim that Steel's exposure to various substances while working at Rhone caused him to develop brain cancer. Rhone raised the two-year statute of limitations as a defense. The Steels then pleaded the discovery rule and asserted that they did not discover the cause of Steel's injury until September 19, 1990.¹ On this date, Kenda Steel read a newspaper article about companies in Freeport voluntarily agreeing to reduce plant emissions because of pressure from the Environmental Protection Agency. This article referred to "cancer risks" at plants where emission reductions were to take place. Mrs. Steel testified that she first realized that her husband's brain tumor was connected with his work at Rhone when she read the newspaper article.

In March 1993, the Steels filed an amended petition and asserted claims on behalf of their minor son, Gregory Steel, who died from leukemia on June 22, 1991. The Steels claim that while Jeffrey Steel worked at Rhone, he unknowingly and inadvertently brought radioactive residue home on his clothing and shoes. The Steels asserted that Gregory was thus exposed to these hazardous substances and that as a result, Gregory contracted leukemia and died.

During the litigation, the trial court issued two agreed case management orders. The trial court issued the first order on January 26, 1993. That order required the Steels to provide to all defendants: (1) an affidavit signed by Jeffrey Steel detailing his exposure to specific chemicals; and (2) an affidavit signed by a qualified medical doctor stating the doctor's medical opinion, based on a reasonable degree of medical probability, that exposure to specific chemicals in the manner described in Jeffrey Steel's affidavit, was, for each chemical, a substantial contributing cause of Steel's brain cancer. The doctor's affidavit was also to provide the basis for that doctor's opinion including reliance, if any, upon specific epidemiological, toxicological, or other medical studies.

On April 28, 1993, the trial court signed a second order, which required: (1) a second affidavit by Jeffrey Steel detailing each exposure to specific chemicals that he believed caused his son, Gregory, to receive exposure to such chemicals; and (2) an affidavit by a qualified medical doctor stating the doctor's medical opinion, based on a reasonable degree of medical probability, that exposure to specific chemicals in the manner described in Jeffrey Steel's second affidavit was, for each chemical, a substantial contributing cause of Gregory Steel's leukemia. The doctor's affidavit was also to provide the basis for that doctor's opinion including reliance, if any, upon specific epidemiological, toxicological, or other medical studies.

In response to the orders, the Steels provided Jeffrey Steel's affidavit, including a list of chemicals to which he was exposed and their origin. Initially, rather than an affidavit, the Steels provided a letter from Dr. Daniel Teitelbaum, a clinical toxicologist, which stated that there was a greater probability than not that the radioactive and organic materials to which Jeffrey Steel was exposed in the course of his work at Rhone were the sole cause or contributed substantially to the cause of Jeffrey Steel's brain tumor and Gregory Steel's leukemia.

In October 1994, all defendants, including Rhone, moved for summary judgment. The defendants asserted as grounds for their motion that the Steels could not prove causation for Jeffrey Steel's brain tumor or Gregory Steel's leukemia and that limitations barred Jeffrey Steel's claims against all defendants. The defendants supported their motion with an affidavit from Stanley M. Pier, Ph.D., an environmental toxicologist, who stated in his affidavit:

Plaintiffs basically speculate that for some unspecified period of time, Jeffrey and Gregory Steel may have come into contact with a small amount of unknown chemicals, which plaintiffs allege may have caused their diseases, while at the same time selectively ignoring all other factors in cancer causation such as alcohol, tobacco, drugs and diet, for example. Essentially, plaintiffs attempt to take an unknown exposure to unknown quantities of unknown chemicals and opine causation with a reasonable medical certainty. This flaunts all processes of scientific reasoning.

. . . .

Before a physician/scientist/plaintiff can state that a known carcinogen can cause or has caused a given cancer, the plaintiff/physician/scientist must have a definition of the substance involved and the characteristics of the exposure . . . . Absent chemical or exposure information, no physician/scientist/plaintiff can possibly establish a medical link within a reasonable certainty, between a carcinogenic agent and a particular cancer.

In response to the defendants' motions for summary judgment, the Steels provided Dr. Teitelbaum's affidavit, Kenda Steel's affidavit, and the September 19, 1990 article linking chemicals from work sites to cancer. In February 1995, the trial court granted summary judgment for all defendants except Rhone. The trial court's order stated that limitations barred all the Steels' claims by and through Jeffrey Steel, and that all the Steels' claims by and through Gregory Steel failed for want of medical causation.

Rhone again moved for summary judgment asserting that limitations barred the damages claims derivative of Jeffrey Steel's own claims, limitations barred claims for Gregory Steel's death, and there was no competent summary judgment evidence of exposure or causation that raised a fact issue on the cause of Gregory Steel's death. The Steels responded, attaching their original response to the original motion, a second affidavit from Dr. Teitelbaum, and other documents.

Those defendants who had previously received summary judgment moved for severance. The trial court initially granted a severance, but subsequently rescinded the severance order, granted Rhone's motion for summary judgment, and rendered a final judgment disposing of the Steels' claims against all defendants. The judgment stated that the court ruled that limitations barred the Steels' claims against all defendants. The judgment further stated that the Steels waived their right to appeal the earlier judgment against all defendants, except Rhone, and that the appellate time limits had run on those defendants. Consequently, the Steels appealed only their claims against Rhone.

In the court of appeals, the Steels asserted that the trial court erred in granting Rhone summary judgment on limitations. The Steels argued that the discovery rule tolled limitations on Jeffrey Steel's claims and a genuine material fact issue existed about the date the Steels discovered their injuries. Rhone argued that Jeffrey Steel's injury was not inherently undiscoverable because he knew of the nature of his injury on October 6, 1989, when he was diagnosed with a brain tumor and knew he had previously worked with chemicals. Therefore, the discovery rule did not apply in that limitations was tolled only until October 6, 1989, at the latest. The court of appeals held that the discovery rule did apply to Jeffrey Steel's injury and that Rhone did not negate the discovery rule by proving as a matter of law when ...