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<P><SPAN STYLE="font-family: Univers" STYLE="font-size: 14pt"><CENTER></SPAN><SPAN STYLE="font-size: 14pt"><STRONG>NUMBER 13-04-499-CV</CENTER> 

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<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> 

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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>THIRTEENTH DISTRICT OF TEXAS</CENTER> 

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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>CORPUS CHRISTI - EDINBURG </STRONG></SPAN><SPAN STYLE="font-family: Univers"></CENTER> 

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<P><STRONG>                                                                                                                      </STRONG></P> 

 

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<P><STRONG></STRONG><STRONG>DANIEL PODOLNY AND </STRONG></P> 

 

<P><STRONG>VIRGINIA PODOLNY,							        Appellants,</STRONG></P> 

 

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<P><STRONG><CENTER>v.</CENTER> 

</STRONG></P> 

 

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<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> 

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<P><STRONG>                                                                                                                      </STRONG></P> 

 

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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>MEMORANDUM OPINION</STRONG></SPAN><STRONG></CENTER> 

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<P><CENTER><STRONG>Before Justices Hinojosa,<A HREF="#N_1_"><SUP> (1)</SUP></A> Ya&ntilde;ez, and Rodriguez</CENTER> 

</STRONG></SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial"><STRONG><CENTER>Memorandum Opinion by Justice Ya&ntilde;ez</STRONG></SPAN><SPAN STYLE="font-family: Arial"></CENTER> 

				</SPAN></P> 

 

<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 &amp; 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 &amp; 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> 

 

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<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> 

 

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<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 YA&Ntilde;EZ,</SPAN></P> 

 

<P><SPAN STYLE="font-family: Arial">							Justice</SPAN></P> 

 

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<P><SPAN STYLE="font-family: Arial">Justice Federico G. Hinojosa not participating.</SPAN></P> 

 

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<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. &amp; 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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