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<P><SPAN STYLE="font-family: Univers"></SPAN><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><IMG SRC="v04499-final_mtd\sotseal6.gif" WIDTH="92" HEIGHT="91"></SPAN></P>
<P><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><CENTER></SPAN><SPAN STYLE="font-size: 14pt"><STRONG>NUMBER 13-04-499-CV</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><STRONG></STRONG></SPAN><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><STRONG><CENTER></STRONG></SPAN><SPAN STYLE="font-size: 14pt"><STRONG>COURT OF APPEALS</CENTER>
<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>THIRTEENTH DISTRICT OF TEXAS</CENTER>
<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>CORPUS CHRISTI - EDINBURG </STRONG></SPAN><SPAN STYLE="font-family: Univers"></CENTER>
</SPAN></P>
<P><STRONG> </STRONG></P>
<P><STRONG></STRONG><STRONG>DANIEL PODOLNY AND </STRONG></P>
<P><STRONG>VIRGINIA PODOLNY, Appellants,</STRONG></P>
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<P><STRONG>ELLIOTT TURBOMACHINERY</STRONG></P>
<P><STRONG>COMPANY, INC., Appellee.</STRONG></P>
<P><SPAN STYLE="font-family: Times New Roman"><STRONG>
</STRONG></SPAN> </P>
<P><CENTER><STRONG>On appeal from the 214th District Court of Nueces County, Texas.</STRONG></CENTER>
</P>
<P><STRONG> </STRONG></P>
<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>MEMORANDUM OPINION</STRONG></SPAN><STRONG></CENTER>
<P><CENTER><STRONG>Before Justices Hinojosa,<A HREF="#N_1_"><SUP> (1)</SUP></A> Yañez, and Rodriguez</CENTER>
<P><SPAN STYLE="font-family: Arial"><STRONG><CENTER>Memorandum Opinion by Justice Yañez</STRONG></SPAN><SPAN STYLE="font-family: Arial"></CENTER>
<P><SPAN STYLE="font-family: Arial"><STRONG></STRONG> Daniel and Virginia Podolny filed a personal injury suit against Elliott
Turbomachinery Company, Inc. ("Elliott"). In the suit, Daniel Podolny ("Podolny") alleged
that Elliott contributed to him acquiring asbestos-related lung cancer. The trial court
granted summary judgment for Elliott based on limitations. We affirm the judgment.</SPAN></P>
<P ALIGN="CENTER"><SPAN STYLE="font-family: Times New Roman"></SPAN><SPAN STYLE="font-family: Arial"><STRONG>Facts</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Podolny asserted the following in his deposition and affidavit.<A HREF="#N_2_"><SUP> (2)</SUP></A></SPAN><SPAN STYLE="font-family: "> In 1996, Podolny
was diagnosed with lung cancer; prior to his diagnosis, doctors informed him that he had
pleural calcification on his lungs. He asserts, however, that doctors never told him his
pleural calcification and lung cancer were caused by his prior exposure to asbestos while
serving in the Navy. In May 2000, Podolny went to a Navy reunion where he received
literature from a law firm;<A HREF="#N_3_"><SUP> (3)</SUP></A> the literature stated that lung and breathing problems could be
caused by asbestos exposure. Podolny later contacted this law firm to inquire as to
whether his pleural calcification was caused by asbestos exposure; Podolny asserts that
he did not associate his lung cancer with his asbestos exposure at this time, nor did he
inform anyone from the law firm that he had lung cancer. Podolny was eventually referred
to another law firm, Waters & Kraus; his first contact with this firm was in October 2000,
at which time he provided the firm with information about his asbestos exposure and
medical history. At some later point, an attorney from Waters & Kraus told Podolny that
his lung cancer was likely caused by asbestos; according to Podolny, this was the first time
someone told him of a connection between his lung cancer and asbestos exposure.
Podolny thus asserts that the limitations period for his lung cancer could not have started
running any sooner than October 2000--less than two years prior to his filing suit against
Elliott on August 22, 2002. He further asserts that it is arguable that the limitations period
did not start running until January 26, 2002--the date when a medical doctor first attributed
Podolny's lung cancer to asbestos exposure. </SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Medical reports attached to Elliott's motion for summary judgment shed additional
light on Podolny's medical history. One report reveals that Podolny was diagnosed with
asbestosis on August 15, 1984. Six subsequent reports, which are dated from July 7,
1985, to October 8, 1996, refer to either Podolny's past asbestos exposure, his asbestosis,
or the presence of pleural plaque and pleural calcification on his lungs.<A HREF="#N_4_"><SUP> (4)</SUP></A></SPAN><SPAN STYLE="font-family: "> A later medical
report shows that Podolny was diagnosed with lung cancer in November of 1996; under
the headline "History of Present Illness," the report notes that Podolny's "chest x-ray
revealed multiple densities suggestive of pleural plaque from history of asbestos
exposure." Lastly, a radiology report from April 2000, which discusses observations made
from a CAT scan of Podolny's chest, states the following: "Diagnosis: lung ca aesbestos
[sic] exposure." Elliott asserts that these medical reports show that Podolny knew there
was a connection between pulmonary disease and asbestos; therefore, upon learning of
his lung cancer, he should have known that it was related to his asbestos exposure long
before October 2000.</SPAN></P>
<P ALIGN="CENTER"><SPAN STYLE="font-family: "><STRONG>Standard of Review</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: "> A defendant seeking summary judgment based on the statute of limitations must
conclusively prove the elements of that affirmative defense.<A HREF="#N_5_"><SUP> (5)</SUP></A></SPAN><SPAN STYLE="font-family: "> When the plaintiff contends
that the discovery rule exempts him from the statute of limitations, the defendant bears the
burden to negate that exception.<A HREF="#N_6_"><SUP> (6)</SUP></A></SPAN><SPAN STYLE="font-family: "> The defendant must prove when the cause of action
accrued and negate the plaintiff's assertion of the discovery rule by proving that it does not
apply or that there is no genuine issue of fact about when he discovered or should have
discovered the nature of his injury.<A HREF="#N_7_"><SUP> (7)</SUP></A></SPAN><SPAN STYLE="font-family: "></SPAN></P>
<P><SPAN STYLE="font-family: "> A lawsuit based on a personal injury claim must be filed within two years from the
date the injury accrues.<A HREF="#N_8_"><SUP> (8)</SUP></A></SPAN><SPAN STYLE="font-family: "> Latent asbestos-related injuries or diseases are governed by the
discovery rule.<A HREF="#N_9_"><SUP> (9)</SUP></A></SPAN><SPAN STYLE="font-family: "> Under the discovery rule, a cause of action accrues when a plaintiff knows
or, through the exercise of reasonable care and diligence, should have known of the
wrongful act and resulting injury.<A HREF="#N_10_"><SUP> (10)</SUP></A></SPAN><SPAN STYLE="font-family: "> A cause of action for a latent occupational disease does
not accrue until (1) symptoms manifest to a degree or for a duration that would put a
reasonable person on notice that he has suffered an injury and (2) he knows or in the
exercise of reasonable diligence should have known that the injury is likely work-related.<A HREF="#N_11_"><SUP> (11)</SUP></A></SPAN><SPAN STYLE="font-family: ">
A latent occupational disease claim does not accrue "until a reasonably diligent plaintiff
uncovers some evidence of a causal connection between the injury and the plaintiff's
occupation."<A HREF="#N_12_"><SUP> (12)</SUP></A></SPAN><SPAN STYLE="font-family: "></SPAN></P>
<P><SPAN STYLE="font-family: "> To affirm a trial court's summary judgment, we must find that there is no genuine
issue of material fact regarding the accrual of the statute of limitations and that the
movants showed they were entitled to judgment as a matter of law.<A HREF="#N_13_"><SUP> (13)</SUP></A></SPAN><SPAN STYLE="font-family: "> In making this
determination, we must resolve all doubts and view all evidence and reasonable inferences
in the nonmovant's favor.<A HREF="#N_14_"><SUP> (14)</SUP></A></SPAN><SPAN STYLE="font-family: "> </SPAN></P>
<P ALIGN="CENTER"><SPAN STYLE="font-family: Times New Roman"></SPAN><SPAN STYLE="font-family: Arial"><STRONG>Discussion</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: Arial"> We begin by first rejecting Podolny's contention that the limitations period did not
start to run until he received a confirmed medical diagnosis that his lung cancer resulted
from asbestos exposure, which occurred on January 26, 2002. According to the supreme
court:</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> 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.
But even if the plaintiff lacks such information, his or her cause of action will
nevertheless accrue if the absence of due diligence is responsible for the
deficiency. Thus, while a diagnosis of a latent occupational disease would
be sufficient to start the limitations period, a final diagnosis is not always
necessary before a cause of action can accrue.<A HREF="#N_15_"><SUP> (15)</SUP></A></SPAN><SPAN STYLE="font-family: "></SPAN></P>
<P><SPAN STYLE="font-family: ">Podolny's assertion that the limitations period for his lung cancer could not have started
running any sooner than October 2000, at which time an attorney first apprised him of a
connection between his lung cancer and asbestos exposure, is also problematic. Though
he contends his doctors failed to inform him that his lung cancer was caused by asbestos,
Podolny was responsible for diligently seeking "medical advice about the nature of his
injury <EM>and the potential causes</EM>."<A HREF="#N_16_"><SUP> (16)</SUP></A></SPAN><SPAN STYLE="font-family: "> Podolny does not assert that he ever inquired as to what
caused his lung cancer, nor does he assert that doctors gave him reason to believe that
asbestos was not the cause. Under these circumstances, we find that a reasonably
diligent person would have asked a doctor if his injury was likely work-related.
Nevertheless, even though Podolny failed to exercise due diligence in seeking medical
advice about the cause of his injury, a fact question in this case will remain if Elliott did not
offer any summary judgment evidence showing that a diligent inquiry would have led
Podolny to discover before August 22, 2000, that he suffered from an occupational
illness.<A HREF="#N_17_"><SUP> (17)</SUP></A></SPAN><SPAN STYLE="font-family: "></SPAN></P>
<P><SPAN STYLE="font-family: "> As discussed earlier, Elliott's motion for summary judgment included Podolny's
medical reports, one of which was made in April 2000. We believe this report, which
contained the statement, "Diagnosis: lung ca aesbestos [sic] exposure," provides sufficient
evidence that had Podolny made a diligent inquiry as to what caused his injury, he would
have discovered, prior to August 22, 2000, that his lung cancer was caused by asbestos
exposure. Accordingly, we conclude that there is no genuine issue of material fact
regarding the accrual of the statute of limitations and that Elliott is entitled to summary
judgment as a matter of law.</SPAN></P>
<P ALIGN="CENTER"><SPAN STYLE="font-family: "><STRONG>Conclusion</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: "> We affirm the judgment of the trial court.</SPAN></P>
<P><SPAN STYLE="font-family: Times New Roman"></SPAN><SPAN STYLE="font-family: Univers"></SPAN><SPAN STYLE="font-family: Univers"> <SPAN STYLE="text-decoration: underline"> </SPAN></SPAN></P>
<P><SPAN STYLE="font-family: Univers"> </SPAN><SPAN STYLE="font-family: Arial">LINDA REYNA YAÑEZ,</SPAN></P>
<P><SPAN STYLE="font-family: Arial"> Justice</SPAN></P>
<P><SPAN STYLE="font-family: Arial">Justice Federico G. Hinojosa not participating.</SPAN></P>
<P><SPAN STYLE="font-family: Arial">Memorandum opinion delivered and filed </SPAN></P>
<P><SPAN STYLE="font-family: Arial">this the 1st day of February, 2007.</SPAN><SPAN STYLE="font-family: Univers"></SPAN></P>
<P><SPAN STYLE="font-family: Times New Roman">
<P><A NAME="N_1_">1. </A><SPAN STYLE="font-family: Arial">The Honorable Federico G. Hinojosa, former Justice of this Court, did not participate in this opinion
because his term of office expired December 31, 2006. <EM>See </EM>Tex. R. App. P. 41.1(c).
<P><A NAME="N_2_">2. </A> We will accept as true the facts stated in the appellant's brief unless another party contradicts them.
<EM>See </EM>Tex. R. App. P. 38.1(f).
<P><A NAME="N_3_">3. </A></SPAN><SPAN STYLE="font-family: Arial"> The name of this law firm was not provided.
<P><A NAME="N_4_">4. </A> In one of these reports, dated September 29, 1994, Dr. Joan E. Trey writes the following: "[Podolny
and I] did discuss his history of asbestos exposure and the presence of pleural plaques as he has obtained
information about a large class action suite [sic] against the asbestos industry."
<P><A NAME="N_5_">5. </A></SPAN><SPAN STYLE="font-family: Arial"><EM> Pustejovsky v. Rapid-Am. Corp.</EM>, 35 S.W.3d 643, 646 (Tex. 2000).
<P><A NAME="N_6_">6. </A></SPAN><SPAN STYLE="font-family: Arial"><EM> Id.</EM>
<P><A NAME="N_7_">7. </A></SPAN><SPAN STYLE="font-family: Arial"><EM> Zacharie v. U.S. Natural Res., Inc.</EM>, 94 S.W.3d 748, 752 (Tex. App.-San Antonio 2002, no pet.).
<P><A NAME="N_8_">8. </A></SPAN><SPAN STYLE="font-family: Arial"><EM> See </EM>Tex. Civ. Prac. & Rem. Code Ann. 16.003(a) (Vernon Supp. 2006).
<P><A NAME="N_9_">9. </A><EM> </EM></SPAN><SPAN STYLE="font-family: Arial"><EM>See Childs v. Haussecker</EM>, 974 S.W.2d 31, 37 (Tex. 1998).
<P><A NAME="N_10_">10. </A></SPAN><SPAN STYLE="font-family: Arial"> <EM>Id.</EM> at 37.
<P><A NAME="N_11_">11. </A><EM> </EM></SPAN><SPAN STYLE="font-family: Arial"><EM>Id. </EM>at 40.
<P><A NAME="N_12_">12. </A></SPAN><SPAN STYLE="font-family: Arial"> <EM>Id.</EM> at 41.
<P><A NAME="N_13_">13. </A></SPAN><SPAN STYLE="font-family: Arial"><EM> See Cate v. Dover Corp.</EM>, 790 S.W.2d 559, 562 (Tex. 1990).
<P><A NAME="N_14_">14. </A></SPAN><SPAN STYLE="font-family: Arial"><EM> </EM>Tex. R. Civ. P. 166a(c)<EM>; Valence Operating Co. v. Dorsett</EM>, 164 S.W.3d 656, 661 (Tex. 2005).
<P><A NAME="N_15_">15. </A><EM> Childs</EM>, 974 S.W.2d at 42 (citations omitted).
<P><A NAME="N_16_">16. </A></SPAN><SPAN STYLE="font-family: Arial"><EM> See id. </EM>at 47 (emphasis added).
<P><A NAME="N_17_">17. </A></SPAN><SPAN STYLE="font-family: Arial"> <EM>Id.</EM></SPAN></P>
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