NUMBER 13-15-00619-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL PASKO, Appellant,
v.
SCHLUMBERGER TECHNOLOGY CORPORATION, Appellee.
On appeal from the 24th District Court of DeWitt County, Texas.
MEMORANDUM OPINION Before Justices Garza, Perkes and Longoria Memorandum Opinion by Justice Longoria
Appellant Michael Pasko sued various parties regarding a work-related injury,
including appellee Schlumberger Technology Corporation (“Schlumberger”). The trial
court granted Schlumberger’s motion for summary judgment based on the affirmative defense of limitations. Pasko argues on appeal that the trial court erred in granting
Schlumberger’s motion for summary judgment. We conclude that Pasko raised a genuine
issue of material fact concerning the date he became aware of his injury and reverse and
remand.
I. BACKGROUND
Pasko was working as a third-party contractor for JC Fodale Energy Services, LLC
on a well site in DeWitt County on May 6, 2013. Schlumberger is a third-party contractor
that supplied employees, equipment, and chemicals to the well site. Pasko claims that
while he was waiting for his job safety analysis sheet to be signed, a Schlumberger
employee told Pasko that a berm was about to overflow due to a water spill. Under the
direction of Schlumberger’s employee, Pasko cleaned the spill. However, the spilled
water actually contained a mixture of chemicals described as “frac chemical residue” that
caused his hands to burn when the mixture came into contact with him. Pasko was taken
to several hospitals but ultimately received treatments for his chemical burns in San
Antonio. In September 2013, Pasko was diagnosed with squamous cell carcinoma.
Pasko filed suit against various parties and individuals on May 5, 2015 for
negligence, gross negligence, negligent misrepresentation, fraud, fraudulent
concealment, conspiracy, and intentional infliction of emotional distress. Pasko amended
his petition to include Schlumberger as a defendant in August 2015. Among several
other claims, Pasko alleged that Schlumberger negligently rigged a hose containing
U028, a gelling agent, on May 5, 2013, the day before the incident. In other words, Pasko
does not argue that Schlumberger’s negligence caused the frac chemical residue
2 overflow on May 6, but rather he alleges that Schlumberger’s negligence on May 5 caused
U028 to leak into the frac chemical residue that he was forced to clean.
Schlumberger filed a motion for summary judgment based upon limitations.
Schlumberger argued that more than two years had passed since Pasko’s injury and thus
Pasko’s claims against Schlumberger were barred by the statute of limitations. Pasko
filed a second amended petition that pled the discovery rule as to all causes of action
against Schlumberger. The trial court granted Schlumberger’s motion for summary
judgment and severed Schlumberger from the original lawsuit. This appeal ensued.
II. SUMMARY JUDGMENT
In three issues, Pasko argues on appeal that it was an error for the trial court to
grant summary judgment because: 1) the trial court considered untimely evidence from
Schlumberger; 2) Schlumberger did not disprove each element of the discovery rule as
pled by Pasko; and 3) Pasko established a genuine issue of material fact as to whether
the statute of limitations was tolled by fraudulent concealment.
A. Standard of Review
We review a traditional summary judgment de novo. See Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). In a traditional motion for summary
judgment, the movant has the burden to show both that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P.
166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Thus,
a defendant moving for traditional summary judgment has the burden to conclusively
prove its affirmative defense. See Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481
(Tex. 2015).
3 When the plaintiff pleads the discovery rule, the defendant has the burden to
negate the discovery rule by establishing as a matter of law no genuine issue of material
fact exists regarding when the plaintiff became aware, or should have become aware, of
his injury. See Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). “The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary-judgment evidence.” Transcon. Ins. Co. v.
Briggs Equip. Trust, 321 S.W.3d 685, 692 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
All evidence favorable to the nonmovant must be taken as true, and all reasonable doubts
must be resolved in favor of the nonmovant. See Childs, 974 S.W.2d at 44. “Typically,
inquiries involving the discovery rule raise questions to be decided by the trier of fact,
although the trial court may determine the commencement of limitations as a matter of
law if reasonable minds could not differ about the conclusion to be drawn from the facts.”
Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 567 (Tex. App.—Texarkana 2000, pet.
denied).
B. Applicable Law
Texas has established a two-year limitations period from the date a cause of action
accrues for a plaintiff to file a claim based on personal injury. See TEX. CIV. PRAC. & REM.
CODE § 16.003(a) (West, Westlaw through 2015 R.S.). “[T]he 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 Childs, 974
S.W.2d at 44 (citing Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262
(Tex. 1994)). Discovering the nature of the injury requires “knowledge of the wrongful act
and the resulting injury.” Id.; see also Shell Oil Co. v. Ross, 356 S.W.3d 924, 929–30
4 (Tex. 2011). Thus, accrual is tolled until a claimant discovers or should have “discovered
the injury and that it was likely caused by the wrongful acts of another.” Childs, 974
S.W.2d at 40 (emphasis added); see Pressure Sys. Int’l, Inc. v. Sw. Research Inst., 350
S.W.3d 212, 217 (Tex. App.—San Antonio 2011, pet. denied) (“That is, the plaintiff must
be aware that his injury was caused by someone's wrongful act, but need not necessarily
know who performed the wrongful act.”); Baxter v. Gardere Wynne Sewell LLP, 182
S.W.3d 460, 463 (Tex. App.—Dallas 2006, pet. denied) (same). More specifically, the
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NUMBER 13-15-00619-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MICHAEL PASKO, Appellant,
v.
SCHLUMBERGER TECHNOLOGY CORPORATION, Appellee.
On appeal from the 24th District Court of DeWitt County, Texas.
MEMORANDUM OPINION Before Justices Garza, Perkes and Longoria Memorandum Opinion by Justice Longoria
Appellant Michael Pasko sued various parties regarding a work-related injury,
including appellee Schlumberger Technology Corporation (“Schlumberger”). The trial
court granted Schlumberger’s motion for summary judgment based on the affirmative defense of limitations. Pasko argues on appeal that the trial court erred in granting
Schlumberger’s motion for summary judgment. We conclude that Pasko raised a genuine
issue of material fact concerning the date he became aware of his injury and reverse and
remand.
I. BACKGROUND
Pasko was working as a third-party contractor for JC Fodale Energy Services, LLC
on a well site in DeWitt County on May 6, 2013. Schlumberger is a third-party contractor
that supplied employees, equipment, and chemicals to the well site. Pasko claims that
while he was waiting for his job safety analysis sheet to be signed, a Schlumberger
employee told Pasko that a berm was about to overflow due to a water spill. Under the
direction of Schlumberger’s employee, Pasko cleaned the spill. However, the spilled
water actually contained a mixture of chemicals described as “frac chemical residue” that
caused his hands to burn when the mixture came into contact with him. Pasko was taken
to several hospitals but ultimately received treatments for his chemical burns in San
Antonio. In September 2013, Pasko was diagnosed with squamous cell carcinoma.
Pasko filed suit against various parties and individuals on May 5, 2015 for
negligence, gross negligence, negligent misrepresentation, fraud, fraudulent
concealment, conspiracy, and intentional infliction of emotional distress. Pasko amended
his petition to include Schlumberger as a defendant in August 2015. Among several
other claims, Pasko alleged that Schlumberger negligently rigged a hose containing
U028, a gelling agent, on May 5, 2013, the day before the incident. In other words, Pasko
does not argue that Schlumberger’s negligence caused the frac chemical residue
2 overflow on May 6, but rather he alleges that Schlumberger’s negligence on May 5 caused
U028 to leak into the frac chemical residue that he was forced to clean.
Schlumberger filed a motion for summary judgment based upon limitations.
Schlumberger argued that more than two years had passed since Pasko’s injury and thus
Pasko’s claims against Schlumberger were barred by the statute of limitations. Pasko
filed a second amended petition that pled the discovery rule as to all causes of action
against Schlumberger. The trial court granted Schlumberger’s motion for summary
judgment and severed Schlumberger from the original lawsuit. This appeal ensued.
II. SUMMARY JUDGMENT
In three issues, Pasko argues on appeal that it was an error for the trial court to
grant summary judgment because: 1) the trial court considered untimely evidence from
Schlumberger; 2) Schlumberger did not disprove each element of the discovery rule as
pled by Pasko; and 3) Pasko established a genuine issue of material fact as to whether
the statute of limitations was tolled by fraudulent concealment.
A. Standard of Review
We review a traditional summary judgment de novo. See Merriman v. XTO
Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). In a traditional motion for summary
judgment, the movant has the burden to show both that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P.
166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Thus,
a defendant moving for traditional summary judgment has the burden to conclusively
prove its affirmative defense. See Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481
(Tex. 2015).
3 When the plaintiff pleads the discovery rule, the defendant has the burden to
negate the discovery rule by establishing as a matter of law no genuine issue of material
fact exists regarding when the plaintiff became aware, or should have become aware, of
his injury. See Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). “The evidence
raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their
conclusions in light of all of the summary-judgment evidence.” Transcon. Ins. Co. v.
Briggs Equip. Trust, 321 S.W.3d 685, 692 (Tex. App.—Houston [14th Dist.] 2010, no pet.).
All evidence favorable to the nonmovant must be taken as true, and all reasonable doubts
must be resolved in favor of the nonmovant. See Childs, 974 S.W.2d at 44. “Typically,
inquiries involving the discovery rule raise questions to be decided by the trier of fact,
although the trial court may determine the commencement of limitations as a matter of
law if reasonable minds could not differ about the conclusion to be drawn from the facts.”
Nugent v. Pilgrim's Pride Corp., 30 S.W.3d 562, 567 (Tex. App.—Texarkana 2000, pet.
denied).
B. Applicable Law
Texas has established a two-year limitations period from the date a cause of action
accrues for a plaintiff to file a claim based on personal injury. See TEX. CIV. PRAC. & REM.
CODE § 16.003(a) (West, Westlaw through 2015 R.S.). “[T]he 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 Childs, 974
S.W.2d at 44 (citing Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262
(Tex. 1994)). Discovering the nature of the injury requires “knowledge of the wrongful act
and the resulting injury.” Id.; see also Shell Oil Co. v. Ross, 356 S.W.3d 924, 929–30
4 (Tex. 2011). Thus, accrual is tolled until a claimant discovers or should have “discovered
the injury and that it was likely caused by the wrongful acts of another.” Childs, 974
S.W.2d at 40 (emphasis added); see Pressure Sys. Int’l, Inc. v. Sw. Research Inst., 350
S.W.3d 212, 217 (Tex. App.—San Antonio 2011, pet. denied) (“That is, the plaintiff must
be aware that his injury was caused by someone's wrongful act, but need not necessarily
know who performed the wrongful act.”); Baxter v. Gardere Wynne Sewell LLP, 182
S.W.3d 460, 463 (Tex. App.—Dallas 2006, pet. denied) (same). More specifically, the
accrual of a “latent occupational disease” claim is deferred “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.”
Markwardt v. Tex. Indus., Inc., 325 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.]
2010, no pet.) (quoting Childs, 974 S.W.2d at 40). A plaintiff’s “mere suspicion . . . that a
causal connection exists between [his] exposure and symptoms is, standing alone,
insufficient to establish accrual as a matter of law.” Id. at 888. However, a medical
diagnosis is sufficient to start the limitations period. Id.
C. Discovery Rule
In Pasko’s second issue, he claims that the trial court erred in granting summary
judgment because he raised genuine issues of material fact regarding the application of
the discovery rule.
In response to Schlumberger’s motion for summary judgment based on limitations,
Pasko amended his petition to plead the discovery rule. Pasko was injured on May 6,
2013 but did not serve Schlumberger until August 2015, more than two years later.
Schlumberger asserts that because Pasko failed to serve Schlumberger within two years
5 of discovering the injury on May 6, 2013, his suit against Schlumberger is barred by the
statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West, Westlaw
through 2015 R.S.). However, Pasko argues that he did not discover the injury he
suffered from Schlumberger on May 6. Pasko admits that he knew he suffered chemical
burns to his hands as of May 6 but argues that he did not discover the latent disease until
September of 2013 when he was diagnosed with squamous cell carcinoma. He also
argues that he exercised due diligence in fully discovering the extent of his injury through
discovery with the defendants; however, he claims that the defendants took several
months to disclose vital information regarding what was in the mixture he was exposed
to, which delayed his ability to discover his latent disease.
Furthermore, Pasko claims that he was initially unaware of Schlumberger’s alleged
wrongful acts and negligence on May 5; he asserts that he did not discover the alleged
negligent hose set up until he was diagnosed with carcinoma, filed suit, and commenced
discovery. Thus, according to Pasko, the accrual date for the injuries he suffered as a
result of Schlumberger was in September of 2013 when he became aware of his latent
disease. See Markwardt, 325 S.W.3d at 887.
Schlumberger counters by arguing that Pasko was aware of his injury on May 6,
2015. Since the squamous cell carcinoma developed in the exact area he was burned,
Pasko should have already been aware of that injury. Therefore, Schlumberger argues
that the discovery rule is inapplicable because Pasko knew he was harmed on May 6,
2013 and that is when the limitations period began to accrue. See id.
Pasko admits that he was aware of the chemical burn on May 6, 2013, but asserts
that he was not aware that his exposure to U028 was allegedly caused by Schlumberger’s
6 wrongful acts on May 5 until his diagnosis several months later. See Childs, 974 S.W.2d
at 40. Pasko argues that until he had conducted discovery for several months and had
been diagnosed with skin cancer, he had no reason to suspect Schlumberger of negligent
behavior and he had no reason to believe he would develop squamous cell carcinoma.
Viewing all the evidence in the light most favorable to Pasko, we conclude that he
raised a genuine issue of material fact concerning when he discovered, or should have
discovered, that he suffered from an occupational disease as a result of Schlumberger’s
alleged negligence. See Provident, 128 S.W.3d at 215; Transcon., 321 S.W.3d at 692.
It was Schlumberger’s burden in this case to negate the application of the discovery rule
in order to prevail on its summary judgment. See Childs, 974 S.W.2d at 40. Pasko
presented evidence suggesting that he did not discover his latent disease and he did not
know it was work related until several months after being exposed to the chemicals. See
Markwardt, 325 S.W.3d at 887. However, Schlumberger failed to establish as a matter
of law that as of May 6, 2015, Pasko was aware, or that diligent investigation would have
led Pasko to be aware, that he suffered from a latent occupational illness. See Childs,
974 S.W.2d at 47. In fact, Schlumberger presented no summary judgment evidence to
establish as a matter of law that Pasko was aware of his squamous cell carcinoma before
September of 2013. See Markwardt, 325 S.W.3d at 887. And Schlumberger offered no
evidence to establish as a matter of law that through the exercise of reasonable diligence
Pasko could have discovered his latent disease before September of 2013. See id. Even
if Schlumberger is arguing that Pasko should have suspected he had squamous cell
carcinoma because of the nature of his injury, mere suspicion alone is insufficient to
establish that the limitations period began to accrue as a matter of law. See id.
7 Furthermore, Schlumberger offered no evidence to suggest that Pasko was aware of
Schlumberger’s alleged wrongful conduct before he was diagnosed with squamous cell
carcinoma. See Childs, 974 S.W.2d at 44.
Consequently, a fact question remains with respect to whether Pasko knew or
should have known through the exercise of reasonable diligence the nature of his injury
before he was diagnosed with squamous cell carcinoma. See Childs, 974 S.W.2d at 47;
see also Nugent, 30 S.W.3d at 574 (holding that the discovery rule tolled the plaintiffs’
injury claims because they did not discover that they had developed squamous cell
carcinoma until several years after exposure). Therefore, we sustain Pasko’s second
issue. Because we sustain Pasko’s second issue, we need not address his other two
issues. See Tex. R. App. P. 47.1.
III. CONCLUSION
We reverse the trial court’s order granting the summary judgment and remand to
the trial court for further proceedings in accordance with this opinion.
NORA L. LONGORIA, Justice
Delivered and filed the 8th day of December, 2016.