LUCILA APONTE, Appellant v. KIM INTERNATIONAL MANUFACTURING, L.P., Appellee

AFFIRMED and Opinion filed May 21, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00358-CV
............................
LUCILA APONTE, Appellant
V.
KIM INTERNATIONAL MANUFACTURING, L.P., Appellee
.............................................................
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-01079-B
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Wright, and Moseley
Opinion By Justice Moseley
        Lucila Aponte sued her former employer, Kim International Manufacturing, L.P., alleging personal injuries from exposure to chemicals. The trial court granted summary judgment in Kim's favor on limitations grounds. In a single issue, Aponte argues summary judgment was improper because she raised a material fact issue as to the date she should have discovered the nature of her injuries. Because the facts are well-known to the parties and the law is well-settled, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm.
BACKGROUND
        Aponte worked at Kim between 1995 and 2004. Her job involved electroplating jewelry, which involved exposure to chemicals and fumes. Aponte sued Kim on February 2, 2005, alleging negligence and gross negligence for failing to protect her from exposure to dangerous chemicals. She alleged she developed a disabling respiratory disease, hernia, gastritis, and reflux. She requested as damages, in part, past and future medical expenses and loss of past and future earning capacity.
        Kim moved for summary judgment on grounds that Aponte's suit was barred by limitations and its evidence negated the discovery rule. Aponte responded that her claim did not accrue until she was diagnosed with asthma, which occurred within the limitations period. The final summary judgment recites the trial court based its decision on limitations and the application of the discovery rule. This appeal followed.
STANDARD OF REVIEW AND APPLICABLE LAW
        A defendant moving for summary judgment on the affirmative defense of limitations must prove conclusively the elements of that defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000). See Tex. R. Civ. P. 166a(c) (party may move for summary judgment on traditional grounds, that there is no genuine issue as to specified material fact and that, therefore, moving party is entitled to judgment as matter of law). This includes conclusively proving when the cause of action accrued. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If the plaintiff pleads the discovery rule as an exception to limitations, the defendant moving for summary judgment on limitations has the burden of negating the exception. Pustejovsky, 35 S.W.3d at 646. The defendant may do so by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the wrongful act and resulting injury. See Childs v. Haussecker, 974 S.W.2d 31, 37 (Tex. 1998); Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex. 1988). If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. KPMG Peat Marwick, 988 S.W.2d at 748.
        Disputes over the discovery rule usually raise questions for the trier of fact; however, “the commencement of the limitations period may be determined as a matter of law if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.” Childs, 974 S.W.2d at 44. We review de novo the trial court's granting of a traditional motion for summary judgment, considering “all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam). See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam); City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
        In general, a plaintiff must file a personal injury suit “within two years after the day the cause of action accrues.” Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2007); Childs, 974 S.W.2d at 36. Because section 16.003(a) of the civil practice and remedies code does not define the accrual date, the courts must determine the accrual date for limitations purposes. Childs, 974 S.W.2d at 36. A cause of action generally accrues when a wrongful act causes a legal injury regardless of when the plaintiff discovers the injury or if all resulting damages have not yet occurred. Id. Courts apply the discovery exception, however, “when the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” Id. at 36-37 (quoting Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996)).
        In latent-occupational disease cases, such as this one, a cause of action accrues
 
whenever 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.
 
Id. at 33, 40. Discovery of the injury does not mean that the plaintiff need discover the precise name of the disease that is causing her symptoms or that the disease is permanent. Id. at 41. The seriousness of a personal injury need not be fully apparent or even fully developed to commence the statute of limitations, and a plaintiff does not need to have a confirmed medical diagnosis for a cause of action to accrue. Id. at 41-42. There must be some objective verification of a causal connection between the occupational exposure and the plaintiff's injury, provided that the failure to obtain verification is not occasioned by a lack of due diligence. Id. at 43. “[A] diligent plaintiff's mere suspicion or subjective belief that a causal connection exists between his exposure and his symptoms is, standing alone, insufficient to establish accrual as a matter of law.” Id.
DISCUSSION
        Aponte testified by deposition that she began to have a “heavy cough” around 1999. She developed a hernia from coughing, and that reflux also started in 1999. She described her health problems and blamed working with hazardous chemicals at Kim for all of them.
        Kim's evidence included the medical records of Aponte's physician, Dr. Gustavo H. Day. Those records include Day's notes of January 4, 2000:
 
Patient complaints of extreme fatigue, worsening in the last 2-3 weeks. It is associated with sinus congestion, sore throat, low grade fever. Related to chemical product used at work. Advised not to use it.
 
Kim argued this evidence showed Aponte's claim accrued on January 4, 2000, because she knew or should have known then that her claim was “likely work-related.” See id. at 40. Because Aponte did not file suit until over five years later, Kim asserted Aponte's claims were barred by the two-year statute of limitations set forth in section 16.003(a).   See Footnote 1 
        Aponte argues that she was first diagnosed with asthma on March 19, 2003, by Dr. James Loftin. She argues this diagnosis is the first possible objective verification of a causal connection between her injuries and toxic exposure. She argues this evidence shows her cause of action accrued on March 19, 2003, and she filed suit within two years of this asthma diagnosis. However, accrual is not dependent on the confirmed medical diagnosis of asthma. See id. at 42 (accrual of cause of action not dependent on confirmed medical diagnosis). Rather, accrual of a cause of action is deferred “until a reasonably diligent plaintiff uncovers some evidence of a causal connection between the injury and the plaintiff's occupation.” See id. at 41. The entry in Day's medical records is an objective verification and some evidence Aponte knew or should have known on January 4, 2001, of a causal connection between her injuries and her occupation. See id. We reject Aponte's argument that her evidence of Loftin's asthma diagnosis raises a fact issue as to the date her cause of action accrued.
        Relying on Allen v. Roddis Lumber & Veneer Co., 796 S.W.2d 758, 760-61 (Tex. App.-Corpus Christi 1990, writ denied), Aponte argues her statement to Day was “nothing more than her own suspicion or subjective belief and insufficient to establish accrual as a matter of law.” In Allen, a physician testified that the plaintiff told him she believed her health problems were related to formaldehyde. This case is distinguishable from Allen because the evidence here shows Day drew a connection between Aponte's health problems and her use of workplace chemicals by advising her not to use them. This is more than evidence of Aponte's “mere suspicion or subjective belief” that her injuries were related to exposure to chemicals at her workplace. See Childs, 974 S.W.2d at 43.
        Reviewing all the evidence in the light most favorable to Aponte, the summary judgment evidence shows that Aponte's symptoms, coupled with Day's advice to her on January 4, 2000, not to use workplace chemicals, would put a reasonable person on notice that she suffered from some injury and she knew the injury was likely work-related. Aponte failed to meet her burden to adduce evidence raising a fact issue as to the date her cause of action accrued. See KPMG Peat Marwick, 988 S.W.2d at 748. Accordingly, the accrual of Aponte's cause of action was deferred until January 4, 2000, which triggered the two-year limitations period. See Childs, 974 S.W.2d at 40. Aponte's lawsuit, filed February 2, 2005, was untimely. The trial court did not err in granting summary judgment on Aponte's causes of action on limitations grounds. We resolve Aponte's single issue against her.
CONCLUSION
        Because of our disposition of Aponte's single issue, we affirm the trial court's final summary judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
 
070358f.p05
 
Footnote 1 Aponte's original petition is not in the appellate record. However, both parties state it was filed February 2, 2005. See Tex. R. App. P. 38.1(f) (in civil case, appellate court accepts as true facts stated unless another party contradicts them).