                          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.




                                             8
