Parker v. Employers Mutual Liability Insurance Co. of Wisconsin

440 S.W.2d 43, 12 Tex. Sup. Ct. J. 200, 1969 Tex. LEXIS 217
CourtTexas Supreme Court
DecidedJanuary 22, 1969
DocketB-529
StatusPublished
Cited by159 cases

This text of 440 S.W.2d 43 (Parker v. Employers Mutual Liability Insurance Co. of Wisconsin) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker v. Employers Mutual Liability Insurance Co. of Wisconsin, 440 S.W.2d 43, 12 Tex. Sup. Ct. J. 200, 1969 Tex. LEXIS 217 (Tex. 1969).

Opinions

HAMILTON, Justice.

This is a workmen’s compensation case in which Alton A. Parker brought suit against his employer’s insurer to recover for disability he alleged was caused by his employment. The trial court after a jury verdict rendered judgment in favor of the plaintiff, Parker, for total and permanent disability due to a cancer caused by exposure to radioactive materials in the course of his employment. The San Antonio Court of Civil Appeals has reversed and rendered judgment for the defendant on the grounds that there was no evidence of a causal connection between the plaintiff’s exposure to radiation and his subsequent development of cancer. 418 S.W.2d 570.

The question before this Court is whether there was evidence presented at trial that Parker’s cancer was caused by radiation received in the course of his em[45]*45ployment. Parker, the petitioner here, contends that some evidence tending to prove causation was presented.

In April, 1961, the plaintiff went to work for his employer, a private company under contract to the United States Government at a government installation near San Antonio. He was initially employed as a material handler. His principal duty was to move material, some of which was radioactive, from one spot to another. He worked in that capacity until September, 1963, when he became a production operator. As a production operator, he assembled and disassembled nuclear weapons. The protective clothing he wore while working consisted of leaded gloves and a leaded apron similar to a carpenter’s apron, which apparently covered the chest and groin. On occasion while working as a production operator he also wore a film badge on his wrist beneath the leaded glove in order to record the amount of radiation which had penetrated the leaded glove. The badges were sent to a laboratory after being worn for a determination of the amount of exposure to radiation. An analysis of the badges worn by the plaintiff showed that he had been exposed to 36 millirems of radiation while wearing the badge.1 There is evidence in the record that supports a conclusion that since the badge was worn beneath protective clothing, it measured only part of the total amount of millirems to which the plaintiff was subjected. The evidence also shows that since material handlers were issued no measuring devices, it is impossible to tell the amount of radiation to which the plaintiff was subjected to while working as a material handler.

In April, 1965, Parker noticed a swelling on the left side of his neck. After consultation with his doctor, he saw Dr. James W. Nixon, Jr. On June 15, 1965, Dr. Nixon surgically removed from Parker’s neck what he diagnosed as a “metastatic carcinoma in the cervical lymph node.” Histological analysis suggested that the removed malignant cells were metastatic in character, reproducing in the lymph node a seminoma, or cancer of the testicle. However, no definite conclusion as to the site of the primary malignant tumor was reached.

Plaintiff, who has since died, brought suit in December, 1965, to recover for total and permanent disability which he alleged was caused by the radiation he received at his employment. Under Vernon’s Tex.Civ. Stat.Ann. Art. 8306, § 20(h) (1967), a workmen’s compensation provision, an employee is entitled to compensation if his disability resulted from a “diseased condition caused by exposure to x-rays or radioactive substances.”

In workmen’s compensation the injured employee need not prove fault, but he must prove that his injury arose out of his employment. This is essentially the same concept of causation in fact as that applied in a negligence suit, but it arises in a different context of liability. Thus the employer is responsible for a disease or injury, whether at fault or not, if the employment occasioned it. Our notions of justice and social policy have long required that there be this causal connection to assess liability for harm. The sine qua non test must be met: but for the conduct or condition, in this case the employment, would the plaintiff have suffered the harm?

The question now before us, then, is what evidence of causal connection between the employment and the plaintiff’s injury there must be to justify the judge submitting the case to the jury. With cancer this question of causation is especially troublesome. Cancer, a generic term covering all malignant tumors, is the second leading cause of death in the United [46]*46States.2 The tumor, a neoplastic growth of cells which disturbs the normal relationship of tissues, is thought by some scientists to be induced by radiation and sunlight, parasites, and certain chemicals.3 Under the present state of scientific knowledge, however, it is difficult to determine the cause of particular cancerous growth. The determination of whether a cause is natural or artificial is especially difficult.4 Nevertheless, the fact that a determination of causation is difficult cannot provide a plaintiff with an excuse to dispense with the introduction of some evidence proving causation.

The common law has dealt with these difficult problems of causation by developing theories of causation upon which courts will submit an issue of fact to a jury. First, courts have allowed juries to decide causation where the general experience or common sense dictate that reasonable men know, or can anticipate, that an event is generally followed by another event. With the unknown and mysterious etiology of cancer, this is not the case we are here considering.

Secondly, courts present the jury with causation questions when there is a scientific generalization, a sharp categorical law, which theorizes that a result is always directly traceable back to a cause. Where, in other words, the harmful consequences provide a traceable chain of causation back to the act itself. This is the traditional use courts have made of expert testimony.5 Scientific generalizations of this sort provide the rationale for the “sequence of . events” test sometimes used when an injury coincides with a specific point of trauma, which we shall discuss later.

Thirdly, probabilities of causation articulated by scientific experts have been deemed sufficient to allow a plaintiff to proceed to the jury. For while a scientific training conceives of anything as possible, coincidence can be measured and generalizations similar to but not the same as uniform physical laws can be drawn from the probability of a result following a cause. In fact, the relationship between cause and its effect per se without theoretical explanation, can be nothing more than probable relationships between particulars. But this probability must, in equity and justice, be more than coincidence before there can be deemed sufficient proof for the plaintiff to go to the jury.

In Texas, expert medical testimony can enable a plaintiff’s action to go to the jury if the testimony is that there is a “reasonable probability” of a causal connection between an act and a present injury. Galveston H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491, 493 (1907).

In Insurance Co. of North America v. Myers, 411 S.W.2d 710

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Bluebook (online)
440 S.W.2d 43, 12 Tex. Sup. Ct. J. 200, 1969 Tex. LEXIS 217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-employers-mutual-liability-insurance-co-of-wisconsin-tex-1969.