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considering federal common law to determine preclusive effect of a Rule 41(b) dismissal
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Civil Action No: SA-01-CA-610-XR
March 10, 2004
ORDER
On this date, the Court considered Plaintiffs' Motion for Partial Summary Judgment on the Affirmative Defenses of Statute of Limitations, Res Judicata, and Collateral Estoppel (docket no. 138), filed June 2, 2003, Defendants' Motion for Partial Summary Judgment on Claims Barred by Res Judicata (docket no. 157), filed June 23, 2003, and Defendants' Motion for Partial Summary Judgment on Claims Barred by Statute of Limitations (docket no. 156), filed June 23, 2003, and the various responses and replies filed to each.
Plaintiffs move for summary judgment on Defendants' affirmative defenses of limitations, res Judicata, and collateral estoppel. In response, Defendants have withdrawn their defense of collateral estoppel, and filed cross motions for summary judgment on limitations and res Judicata. Defendants move for partial summary on all claims of Plaintiffs Hilaria Cano, Charles Foley, and Angel R. Ruiz under the doctrine of res Judicata based on Plaintiffs' participation in prior lawsuits. Defendants move for partial summary judgment on the claims asserted by Plaintiffs Hilaria Cano, Charles Foley, Angel R. Ruiz, and Sam Jansky, Sr. on the basis of limitations.
Summary Judgment Standard
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The court must draw all reasonable inferences in favor of the non-moving party. Id. at 255. To obtain summary judgment, "if the movant bears the burden of proof on an issue . . . because . . . as a defendant he is asserting an affirmative defense, he must establish beyond peradventure all of the essential elements of the . . . defense to warrant judgment in his favor." Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).Facts
Hilaria Cano and Charles Foley were plaintiffs in the prior suit Garcia v. Conoco, SA-96-CA-1079-OG (W.D. Tex.). Plaintiffs originally filed that suit in state court, asserting claims for property damage and personal injury caused by the defendants' uranium mining and milling operations, and Defendants removed based on the Price-Anderson Act. On March 5, 1998, the United States Magistrate Judge recommended that the Plaintiffs' claims be dismissed for failure to comply with the court's "lone-pine" order. The Magistrate Judge recommended that "all personal injury claims" be dismissed under Rule 16(f), which permits a court to sanction a party pursuant to Rule 37(b)(2)(B), (C), or (D) or otherwise for failing to obey a court order. Rule 37(b)(2)(C) permits a court to strike a party's pleadings or to dismiss a party's action. On September 30, 1998, the District Judge accepted the Magistrate Judge's recommendation and dismissed Plaintiffs' claims for personal injury under Rule 16(f) for failure to comply with the scheduling order.
Angel R. Ruiz was a plaintiff in the prior suit Acuna v. Brown Root, SA-96-CA-543-OG (W.D. Tex.). Acuna was similar to Garcia and followed a similar path. On February 2, 1998, the Magistrate Judge recommended that Plaintiffs' claims be dismissed for failure to comply with the scheduling order. On September 30, 1998, the District Judge accepted the Magistrate Judge's recommendation and expressly dismissed Plaintiffs' claims "with prejudice."
Plaintiffs appealed both rulings, and the appeals were consolidated. See Acuna v. Brown Root, 200 F.3d 335 (5th Cir.), cert. denied, 530 U.S. 1229 (2000). After concluding that removal was proper under the Price-Anderson Act because the Act conferred exclusive federal jurisdiction over the Plaintiffs' claims, the Fifth Circuit affirmed the district court's judgment dismissing the cases.
Plaintiffs have now filed the present suit against the same defendants alleging personal injury arising out of Defendants' uranium mining and milling activities. As noted, Defendants move for summary judgment against Cano, Foley, and Ruiz on the basis of both res judicata and limitations. Defendants also move for summary judgment against Sam Jansky, Sr., who was not a party to any prior related litigation, on the basis of limitations. Because res judicata and limitations both implicate the single action rule, the Court will begin with a discussion of that rule.
The Single Action Rule
Traditionally, the "single action rule" provides a plaintiff one indivisible cause of action for all damages arising from a defendant's single breach of a legal duty. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000). This rule applies in both res judicata and limitations contexts. Texas courts have generally strictly applied this rule, holding that "a cause of action accrues when the plaintiff knows or reasonably should know that he had been legally injured by the alleged wrong, however slightly. The fact that the plaintiff's actual damages may not be fully known until much later does not affect the determination of the accrual date. . . ." Murphy v. Campbell, 964 S.W.2d 265, 273 (Tex. 1997). The Fifth Circuit has likewise strictly applied the rule:
[O]nce injury results there is but a single tort and not a series of separate torts, one for each resultant harm. The cause of action thus created is for all the damage caused by the single legal wrong, and a plaintiff may not split this cause of action by seeking damages for some of his injuries in one suit and for later-developing injuries in another. The cause of action "inheres in the causative aspects of a breach of a legal duty, the wrongful act itself, and not in the various forms of harm which result therefrom. . . ." [A plaintiff] does not have a discrete cause of action for each harm.Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1136-37 (5th Cir. 1985) (footnotes omitted). Thus, in Gideon, the Court held that the plaintiff could not split his cause of action and recover damages for asbestosis, then later sue for damages caused by such other pulmonary disease as might develop, then still later sue for cancer should cancer appear.
A leading commentator has recognized the problems arising under the single action rule with respect to latent injuries arising long after a plaintiff's initial but comparatively minor injury is known: "The question whether all diseases arising from the same . . . exposure constitutes a single claim is tied in to specific tort-law decisions, including the decision whether to recognize a right to recover for the fear or for the risk of future injury. These questions are controlled by state law, and have yet to receive satisfactory answers." WRIGHT, MILLER COOPER, FED. PRACTICE PROCEDURE § 4408, at 210. That commentator also states that "[c]laim splitting may . . . be excused because the plaintiff did not know the full dimensions of the claim at the time of the first action. Any exception of this sort must depend on showing that the plaintiff was not aware of the full extent of the injuries involved with the claim. If the plaintiff knows of the injuries, it is no excuse that a lawyer has failed to adduce evidence that might have been got, to develop an available theory of recovery, or to seek a particular remedy, no matter what level of skill might be required." WRIGHT § 4415, at 357. "If the plaintiff does not know the full extent of the injuries, however, an exception may be made. The proper scope of the exception depends on the perspective chosen. If claim preclusion is viewed primarily as a device to force efficient joinder of claims, a plaintiff may be excused whenever his ignorance seems reasonable." Id. § 4415, at 359.
The Texas Supreme Court considered these issues in the asbestos context in Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000). In that case, the Court considered whether limitations barred a plaintiff's action for mesothelioma that developed after the plaintiff settled a claim for asbestosis. The Court noted that its past decisions, as well as decisions of the Fifth Circuit applying Texas law (such as Gideon), had strictly applied the single action rule, precluding recovery for injuries that had not become manifest when the cause of action accrued. Id. at 651. However, the Court also acknowledged that some courts and commentators "have recognized that the single action rule is a catch 22 for victims of multiple latent diseases, if applied to them the same as traditionally applied to victims of traumatic injuries." Id. If a plaintiff brought suit based on a minor injury, he would not be able to recover for later-developing cancer because, under Texas law, a "plaintiff can only recover future damages for injury that the plaintiff has a reasonable medical probability of developing." Id. at 649. Yet if the plaintiff waits to sue until cancer develops, he will likely be barred from recovering by limitations. The Court thus noted that most jurisdictions allow separate actions for separate diseases arising from the same exposure to asbestos. Id.
Although a limitations case, the Court considered res judicata principles because "res judicata is implicated here because it informs what should constitute a single cause of action." Id. at 651. The Court concluded that "[a] single action rule for separate latent occupational diseases in this context would be incompatible with the `transactional' approach for res judicata." Id. Although any claim that arises out of the same set of facts should be litigated in the same case, the transactional approach "does not necessarily penalize a plaintiff for not bringing a claim arising out of the same facts that nonetheless could not have been litigated in the initial litigation." Id. The Court emphasized that res judicata acts as a bar only if the subsequent claim could have been litigated in the prior suit. Id. The Court noted that "[g]enerally, the single action rule and the transactional approach to res judicata are not in tension. In cases in which the injury is progressive a plaintiff exercising due diligence will normally be able to discover the full extent of injury and recover for reasonably certain future damages." Id. at 652. The Court also noted that it has "made occasional exceptions to the accrual rule, known as the discoveryrule, in cases in which `the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.'" Id.
Thus, "[i]n the typical case involving progressive injuries, the single action rule may occasionally result in uncompensated damages, in order to vindicate other competing interests." Id. The Court excepted asbestos-related cases from the single action rule because in those cases, "multiple, latent injuries may manifest years or even decades apart" and thus "would produce more erratic results." Id. In Pustejovsky, "no amount of due diligence would have allowed [the plaintiff] to recover for mesothelioma when he brought his suit for asbestosis" because there was no evidence that the plaintiff had a greater than fifty percent chance of developing cancer at the time of his first suit. Id. Accordingly, the Court rejected Gideon and concluded that "a person who sues on or settles a claim for a non-malignant asbestos-related disease with one defendant is not precluded from a subsequent action against another defendant for a distinct malignant asbestos-related condition." Id. at 653. The diagnosis of a malignant asbestos-related condition creates a new cause of action. Id. However, the Court expressly limited its holding to "asbestos-related diseases resulting from workplace exposure for several reasons," including that asbestos litigation is a mature tort with which the judicial system has had extensive experience. Id. at 653-54.
Thus, the Texas Supreme Court has recognized that both limitations and res judicata invoke the single action rule for purposes of defining a cause of action. However, it recognized an exception to the single action rule for asbestos-related cases in which a second, independent latent disease develops and the plaintiff could not have asserted that cause of action in the first suit because no amount of due diligence would have established that the plaintiff would likely develop the second latent disease (mesothelioma). Having set out the relevant Texas law, the Court will now address Defendants' motions for summary judgment based on res judicata and limitations, respectively.
Res Judicata
The doctrine of res judicata contemplates, at a minimum, that courts not be required to adjudicate, nor defendants to address, successive actions arising out of the same transaction, asserting breach of the same duty. Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 563 (5th Cir. 1983). For a prior judgment to bar an action on the basis of res judicata, (1) the parties in the later action must be identical to or at least in privity with the parties in the prior action; (2) the judgment rendered in the prior action must have been rendered by a court of competent jurisdiction; (3) there must have been a final judgment on the merits, and (4) the same cause of action must be involved in both cases. Vasquez v. Bridgestone/Firestone, Inc., 325 F.3d 665, 676 (5th Cir. 2003).
A. Identical Parties
Defendants have demonstrated that Angel R. Ruiz was a plaintiff in the prior Acuna action and that Charles Foley and Hilaria Cano were plaintiffs in the prior Garcia action. Further, Conoco, Chevron, and Rio Grande Resources, the remaining defendants, were all defendants in the Acuna and Garcia actions. Plaintiffs do not dispute that the parties in the prior suits were identical to the parties in this suit.
B. Prior Judgment Rendered by a Court of Competent Jurisdiction
The Fifth Circuit confirmed on appeal that the district court had exclusive jurisdiction over the Plaintiffs' claims. This element is not contested.
C. Final Judgment on the Merits
Defendants assert that Acuna was dismissed with prejudice and that, although the Garcia judgment did not specify that it was "with prejudice," pursuant to Federal Rule of Civil Procedure 41(b), both cases "were dismissed in a manner that is an adjudication on the merits." Rule 41(b) concerns involuntary dismissals and their effects. It provides that "[u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits." FED. R. Civ. P. 41(b). In Semtek lnt'l, Inc. v. Lockheed Martin Corp., 531 U.S. 497, 501 (2001), the Supreme Court noted that not necessarily all judgments denominated "on the merits" are entitled to claim-preclusive effect. Thus, it is not true that a judgment "on the merits" is necessarily a judgment entitled to claim-preclusive effect, and the phrase "adjudication upon the merits" does not bear that meaning in Rule 41(b). Id. at 503. The Court concluded that a more reasonable interpretation of Rule 41(b)'s use of "adjudication upon the merits" is the opposite of "dismissal without prejudice." Id. at 505. As a result, "the effect of the `adjudication on the merits' default provision of Rule 41(b) . . . is simply that, unlike a dismissal `without prejudice,' the dismissal [with prejudice] barred refiling of the same claim in the [same court]." Id. at 506; see also Vasquez, 325 F.3d at 678 ("`[A]n adjudication on the merits' [under Rule 41(b)] bars refiling of the same claim in the same court but does not establish claim preclusion.").
Thus, Rule 41(b) establishes that both dismissals in Garcia and Acuna were "with prejudice." However, the Court must look to federal common law to determine the claim preclusive effect of the prior judgments of the federal court. Fifth Circuit case law establishes that a federal court's penalty dismissal as a discovery sanction can have a res judicata effect on future federal court actions. The Fifth Circuit has expressly held that dismissal of a case under Federal Rule of Civil Procedure 37(b)(2)(C) for failure to comply with a court order operates as a dismissal with prejudice for purposes of res judicata. In the Matter of Reed, 861 F.2d 1381, 1381 (5th Cir. 1988); see also Matter of Besing, 981 F.2d 1488, 1496 n. 15 (5th Cir. 1993); Dillard v. Security Pacific Brokers, Inc., 835 F.2d 607 (5th Cir. 1988); 18A WRIGHT MILLER, FED. PRAC. PRO.2d §§ 4435, 4440. Thus, the prior dismissals in Acuna and Garcia are adjudications on the merits with claim preclusive effect.
In addition, the claims have been resolved through appeal to the Fifth Circuit and denial of a writ of certiorari by the Supreme Court. Accordingly, the judgments are final.
D. Same Causes of Action Involved
Texas and the Fifth Circuit have adopted the "transactional test" of the Restatement (Second) of Judgments to determine whether two suits involve the same claim. Southmark Props, v. Charles House Corp., 742 F.2d 862, 870-71 (5th Cir. 1984); Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex. 1992). The principal test for comparing causes of action is whether the primary right and duty or wrong are the same in each action. Nilsen, 701 F.2d at 559. That the issue presented in the current case was never decided in the former case does not signify; it is black-letter law that res judicata bars all claims that were or could have been advanced in support of the cause of action in the first proceeding, not merely those that actually were adjudicated. Id. at 560.
Defendants contend that Plaintiffs' current claims are part of the same transaction or claim presented in the Acuna and Garcia actions, and thus are precluded. They contend that, under the single action rule, "once injury results there is but a single tort and not a series of separate torts, one for each resultant harm." Gideon, 761 F.2d at 1136. Plaintiffs respond that, under Pustejovsky, plaintiffs "should bring multiple actions for injuries distinctly separated in time arising from toxic exposures." Defendants respond that Pustejovsky does not apply to Cano, Ruiz, or Foley because that case is expressly limited to asbestos cases, and in any event they were suffering from cancer while their prior lawsuits were pending, and thus their claims are not new, later-developing diseases not present at the time the first action was brought. They conclude that Plaintiffs therefore could have asserted the claims for damages arising from their cancers in the prior suits.
Based on a comparison of the Acuna and Garcia suits with the present suit, Plaintiffs' claims arise out of the same transaction or occurrence. Both suits complain of the uranium mining and/or milling activities in the area surrounding Plaintiffs' residences. Plaintiffs asserted both personal injury and property damage claims in the prior suits, although Plaintiffs emphasize that they did not expressly seek recovery for their cancers. In Acuna, Plaintiffs alleged that Defendants negligently conducted their uranium mining activities and that their negligence proximately causes personal injury. They asserted causes of action for negligence, gross negligence, strict liability, and negligence per se. Ruiz, a plaintiff in Acuna, admits that he was diagnosed with Hodgkin's lymphoma in August 1996, before the suit was dismissed (and he was also diagnosed with non-Hodgkin's lymphoma in November 1998, after the dismissal).
In Garcia, Plaintiffs alleged that "Defendants, in connection with uranium mining, milling, and associated operations, and/or reclamation operations, and/or the generation, transport, storage, and/or disposal of industrial waster or by-products, improperly, unlawfully, negligently, recklessly, and with heedless and conscious disregard of the consequences of their actions, released or caused to be released into the air, water, and soil, toxic, harmful, lethal, radioactive, carcinogenic and injurious substances, causing such substances to come in contact with the plaintiffs. . . ." They asserted causes of action for negligence, gross negligence, negligence per se, and strict liability. Cano admits she was diagnosed with thyroid cancer in August 1998. Foley stated at his deposition that he was diagnosed with lung, liver, and kidney cancer on March 1, 1998. However, in his affidavit, he states that he was first diagnosed with lung, liver, and kidney cancer in early 2000. In this suit, all three Plaintiffs assert that they suffer from cancer due to Defendants' mining and milling activities.
Although the res judicata implications of these facts seem clear, Plaintiffs attempt to avoid its effect by arguing that res judicata does not apply even if they had cancer at the time of the first suit because their causes of action for the cancer had not yet accrued under the discovery rule. Plaintiffs contend that they did not discover the cause of their cancers during the prior lawsuits, and thus, under the Texas Supreme Court's decision in Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998), their claims for the cancer had not accrued at the time of the prior actions.
In Childs, the Texas Supreme Court applied the discovery rule to latent occupational diseases and held that "when the discovery rule applies, accrual is tolled until a claimant discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another." Id. at 40. The Court reasoned that "a latent injury or disease is the epitome of the type of injury that is often inherently undiscoverable within the applicable limitations period." Id. at38. "Moreover, even when symptoms do arise that make the fact of injury objectively verifiable, the injury and its etiology are difficult to diagnose and ascertain because of the lengthy latency period, the many potential causes of the specific symptoms, and some physicians' lack of education and experience in identifying occupational diseases." Id. Thus, applying the discovery rule avoids unjust results and conserves judicial resources by preventing the filing of speculative claims. Id. Further, the Court noted in dicta that many courts had allowed the statute of limitations to run separately for each distinct disease when more than one, separate disease process results from a particular exposure, and that its formulation of the discovery rule for latent disease cases "does not necessarily preclude a plaintiff from recovering damages for every disease that ultimately manifests itself as a result of the occupational exposure." Id.
The Court noted that claims based exclusively on unfounded suspicions or belief that the injury is related to a particular exposure do not justify the filing of a lawsuit and thus "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. at 43. Thus, although the plaintiffs had filed workers' compensation suits for the same injuries involved in the second suits, the Court concluded that a plaintiff's filing of a prior worker's compensation lawsuit is only a factor that, when considered with other factors, could give rise to conflicting inferences about the plaintiff's knowledge of the injury and its likely cause for purposes of applying the discovery rule in a later lawsuit. Id. However, the Court noted that a plaintiff's cause of action in a second suit would remain subject to the res judicata and collateral estoppel effects of the worker's compensation suit. Id.
Under current law, the single-action rule generally continues to apply to latent-injury cases outside the asbestos context. Moreover, even applying the reasoning of Pustejovsky, a plaintiff who suffers from and knows of his injury during the prior action would be barred by res judicata from seeking recovery for that injury in a second suit. Pustejovsky was premised on the fact that no amount of due diligence would have allowed the plaintiff to recover for mesothelioma because under Texas law, a plaintiff can only recover for future cancer if he demonstrates that it is more likely than not that he will develop cancer. The Court concluded that, under such facts, applying a single action rule would be inconsistent with the transactional approach to res judicata, supporting the plaintiff's position that the Court should adopt separate accrual rules. That bar to recovery for speculative injuries does not apply when the injury is no longer speculative, but certain, even if the plaintiff has not objectively adduced the cause of the injury. Although Plaintiffs seek to incorporate the discovery rule into the res judicata equation in toto, res judicata and limitations involve somewhat different inquiries and serve different purposes. Thus, the fact that a plaintiff who knows of his injury but has not necessarily tied the injury causally to the defendant may delay accrual for purposes of limitations does not necessarily preclude the application of res judicata. See Childs, 974 S.W.2d at 43 (noting that plaintiff's filing a workers `compensation suit based on mere speculation regarding the cause of his injury could still have res judicata and collateral estoppel effects on later action).
This Court agrees with Wright and Miller that "[a]ny exception [to the rule against claim splitting] must depend on showing that the plaintiff was not aware of the full extent of the injuries involved with the claim. If the plaintiff knows of the injuries, it is no excuse that a lawyer has failed to adduce evidence that might have been got, to develop an available theory of recovery, or to seek a particular remedy, no matter what level of skill might be required." Id. § 4415, at 357. The catch-22 that led the Texas Supreme Court to carve out an exception to the single action rule in asbestos cases is simply not present when the injury exists and is discovered during the prior action. Because the injury is known and certain, the plaintiff could recover for it, even if the plaintiff has not objectively linked the injury to the defendant's conduct. Thus, if the plaintiff has and knows of the injury during the prior action, it is no excuse that the plaintiff had not adduced the likely cause of that injury, and a subsequent suit against the same defendant to recover for that injury is barred by res judicata. Although the discovery rule permits a plaintiff to delay filing suit until a claim is no longer speculative, when the injury is known during the prior suit, the principles behind the discovery rule must yield to the purpose of res judicata to protect defendants from serial litigation arising out of the same subject matter.
1. Hilaria Cano
Mrs. Cano was a plaintiff in the Garcia case, which was dismissed on September 30, 1998. She was diagnosed with thyroid cancer on August 21, 1998, and she brings a claim for personal injury based on thyroid cancer in the current case. Plaintiffs have submitted an affidavit for Mrs. Cano, in which she admits that she was first advised by her doctor that she had thyroid cancer in August 1998. In Garcia, Plaintiffs' petition alleged that "Defendants, in connection with uranium mining, milling, and associated operations, and/or reclamation operations, and/or the generation, transport, storage, and/or disposal of industrial waster or by-products, improperly, unlawfully, negligently, recklessly, and with heedless and conscious disregard of the consequences of their actions, released or caused to be released into the air, water, and soil, toxic, harmful, lethal, radioactive, carcinogenic and injurious substances, causing such substances to come in contact with the plaintiffs. . . ." "A subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence, could have been litigated in a prior suit." Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). The summary judgment evidence demonstrates that the current suit arises out of the same subject matter as the Garcia suit, and that, during the pendency of the Garcia lawsuit, Cano knew she had the cancer for which she now sues and knew that she had been exposed to carcinogenic substances by Defendants. Because Cano was suffering from thyroid cancer during the prior lawsuit, there is no doubt she could have asserted the claim for that cancer at that time. Although Cano attests that she did not attribute her thyroid cancer to the uranium mining and milling until after the prior lawsuits were dismissed, the Court finds that, in the exercise of due diligence, Cano could have litigated her claim for personal injury for thyroid cancer in the prior lawsuit. Accordingly, her claim in the present suit is barred by res judicata. The Court grants Defendant's motion for partial summary judgment on the basis of res judicata with respect to the claims of Hilaria Cano.
2. Angel Ruiz
Mr. Ruiz was a plaintiff in the Acuna case, in which he alleged a claim for personal injury. That case was dismissed on September 30, 1998. Ruiz was diagnosed with Hodgkin's lymphoma on August 16, 1996, and with non-Hodgkin's lymphoma in November 1998. In the present suit, he asserts a claim for personal injury based on both his Hodgkin's lymphoma and his non-Hodgkin's lymphoma. Plaintiffs have produced Ruiz's affidavit, in which he states that "The Acuna/Garcia case had nothing to do with my cancer or claims arising out of my cancer that was diagnosed in Nov. of 1998."
In Acuna, Plaintiffs alleged that Defendants negligently conducted their uranium mining activities and that their negligence proximately caused personal injury. The affidavit submitted by Dr. Charlie F. Smith stated that, with regard to workers, "[r]adioactive dust would be both respirated into the individual's lungs and be ingested orally as well due to any occasional contact of the hands which are coated in dust and chemical residue with the mouth." He further stated that, "[a]lthough the miners themselves were the primary recipients of this dust, residents throughout the community also breathed this radioactive or other toxified dust saturated in the toxic chemicals mentioned in my earlier affidavits." Thus, the summary judgment evidence indicates that Ruiz had cancer during his prior suit, although he also developed another cancer after the suit, and that he knew of his exposure to radioactive substances before the resolution of the prior lawsuit. Thus, he could have litigated his claims for the cancer diagnosed in 1996 in the first lawsuit.
With regard to the non-Hodgkin's lymphoma diagnosed in November 1998, Defendants contend that "Mr. Ruiz's cancer was, in both instances, a malignant lymphoma of high grade follicular center cell type." However, they do not conclusively establish that Ruiz's cancer was a progressive disease encompassing both the Hodgkin's and non-Hodgkin's lymphoma, as opposed to separate independent forms of cancer. Nor do they conclusively establish that Ruiz had a greater than fifty percent chance of contracting non-Hodgkin's lymphoma at the time of the prior suit, and thus they fail to establish that Ruiz could have asserted the claim for the second cancer in the first suit.
Thus, the Court grants Defendants' motion for summary judgment on the basis of res judicata with regard to Ruiz's claims for the first cancer, Hodgkin's lymphoma, diagnosed in 1996. However, the Court denies Defendants' motion for summary judgment on the basis of res judicata with regard to Plaintiff's claims for the second cancer, the non-Hodgkin's lymphoma diagnosed in November 1998, after the prior case was dismissed.
3. Charles Foley
Charles Foley, like Hilaria Cano, was a plaintiff in the Garcia case. At his deposition, he testified that he had first been diagnosed with lung, liver, and kidney cancer on March 1, 1998, a date before the dismissal of the Garcia case. In his affidavit, he states that "[t]he Acuna/Garcia case had nothing to do with my cancer or claims arising out of my cancer." He further states, in contrast to his deposition testimony, that he was first advised by his doctor that he had lung, liver, and kidney cancer in early 2000, but that it was not until January 2001 that he learned from his attorney that his cancer was likely caused by the uranium mining and milling facilities. In addition, Defendants attached a report by Dr. Malin Dollinger as Exhibit E to their Response to Plaintiffs' Motion for Partial Summary Judgment, which lists the date of diagnosis of Foley's lung cancer as "3/00." Other than the deposition testimony, Defendants have proffered no summary judgment evidence demonstrating that Foley was diagnosed with cancer while the Garcia case was pending. Moreover, Defendants' own briefing on its Motion for Partial Summary Judgment on Claims Barred by the Texas Workers' Compensation Statutes states that "Charles Foley was diagnosed with lung, liver, and kidney cancer in March 2000." Thus, a fact issue remains regarding whether Foley had cancer during the pendency of the prior lawsuit such that summary judgment on the basis of res judicata is inappropriate. Defendants' motion for summary judgment on the basis of res judicata is denied with regard to Foley's claims.Defendants' Motion for Partial Summary Judgment on Claims Barred by Statute of Limitations (docket no. 156)
Defendants move for summary judgment based on limitations on the claims of Hilaria Cano, Angel Ruiz, Charles Foley, and an additional plaintiff, Sam Janksy, Sr. Because the Court has already granted summary judgment with regard to Cano on the basis of res judicata, the limitations issue will be limited to Plaintiffs Ruiz, Foley, and Jansky.
All parties agree that Texas law governs the limitations issue. Under Texas law, personal injury claims must be brought "not later than two years after the day the cause of action accrues." TEX. Civ. PRAC. REM. CODE § 16.003(a). In most cases, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur. Childs, 974 S.W.2d at 36. In latent disease cases, the Texas Supreme Court has applied a judicially-crafted exception to the general rule of accrual, known as the discovery rule. Id. at 36-37. Under that rule, a cause of action does not accrue until a plaintiff knows or, through the exercise of reasonable care and diligence, should have known of the wrongful act and resulting injury. Id. at 37. Cancer due to radiation exposure is undoubtedly the type of latent disease that is often inherently undiscoverable within the applicable limitations period, and the Texas Supreme Court has expressly held that limitations begins to run on a plaintiff's cause of action for latent occupational disease begins when "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 40.
The Court further held that "a latent occupational disease should not be deemed to accrue absent some objective verification of a causal connection between injury and toxic exposure, provided that the failure to obtain that verification is not occasioned by a lack of due diligence." Id. at 43. Accordingly, "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. Whether a plaintiff has filed a lawsuit related to the injury is a factor to be considered with the other facts and circumstances presented by each case in determining the plaintiff's knowledge of the injury and its likely cause. See id. Defendants bear the burden of negating the discovery rule at the summary judgment stage. Id. at 44.
Plaintiffs contend that Defendants have failed to present conclusive summary judgment evidence that the Plaintiffs discovered or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another more than two years before the Plaintiff filed suit. Plaintiffs further argue that Defendants have not proved that Plaintiffs were not diligent in discovering the cause of their cancers. In evaluating the propriety of a defendant's motion for summary judgment based upon the statute of limitations, the court must draw all reasonable inferences in favor of the non-moving party. Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2004)
1. Charles Foley
As noted, Mr. Foley testified at his deposition that he was diagnosed with cancer involving his lung, liver, and kidney on March 1, 1998. He further testified that he became disabled from cancer in 2000. As noted previously, his affidavit states that he was first advised by his doctor that he had lung, liver, and kidney cancer in early 2000. It also states that "it was not until Jan. 2001 that [he] learned from [his] attorney that [his] cancer is likely caused by the existence/operation of the uranium mining/milling facilities in the Karnes County area." Foley was one of the original plaintiffs in this suit, filed in July 2001. As held previously, a fact issue remains regarding when Mr. Foley was diagnosed with his cancer. If it was in early 2000, as stated in his affidavit, it would not have been more than two years before he filed suit. Moreover, Defendants have not produced sufficient summary judgment evidence to demonstrate that Mr. Foley should have known of his symptoms more than two years before he filed suit. Accordingly, Defendant's motion for summary judgment based on limitations is denied with regard to Mr. Foley's claims.
2. Sam Jansky, Sr.
Sam Jansky, Sr. worked for Chevron at the Panna Maria mill from 1978 until 1993. He was diagnosed with colon cancer in July 1997. Mr. Jansky joined this lawsuit in the First Amended Complaint, filed on November 29, 2001, more than four years after his diagnosis. Jansky was not a plaintiff in the prior lawsuits. He testified that he was not aware of and did not attend public hearings about the Chevron facility, and had only heard about one lawsuit from a former co-employee, Johnny Longoria, either while he was in the hospital or within a few weeks after he was released. Defendants point to Jansky's deposition testimony that he wore a radiation badge during his former employment. When asked whether his badge showed an "exceedance" in his exposure to radiation, he said "That I couldn't tell you. The only thing, we turn in our badges. They never told me nothing. They just said everything came out fine or whatever. They didn't say nothing." He further testified that he turned in his badge once every two weeks or a month, that he always wore it, and that when he left he did not get any report about his exposures. He further testified that he gave urine samples but had not been told that his urine reflected an overexposure. He testified that his doctor had not talked to him about what might have caused his cancer, and that he had not talked to anyone except his lawyers about what might have caused his cancer. Although Defendants say that Jansky knew that radiation was bad for him, he stated that "they said it could hurt you, but you get more radiation from a damn color TV than what we got from there." When asked, "But it was your understanding that it could hurt you if you got too much radiation?" he answered, "Right."
Based on this evidence, Defendants argue that "Jansky had knowledge of his injury (cancer), his exposure (his work place where he was badged) and the possible cause (by knowledge of his work and other lawsuits) when he left the hospital in 1997."
Under Childs, summary judgment is appropriate only if Defendants have negated the discovery rule by establishing that no genuine issue of material fact exists concerning when Jansky knew that he suffered from cancer and discovered, or in the exercise of reasonable diligence should have discovered, the likely causal connection between his symptoms and his exposure. Childs, 974 S.W.2d at 44. It is undisputed that Jansky was diagnosed in July 1997. Thus, the question becomes when, in the exercise of reasonable diligence, he should have discovered the likely causal connection between his cancer and his exposure. Such inquiries usually entail questions for the trier of fact; however, it 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. Id.
When Jansky should have connected his cancer to Defendants' uranium mining and milling activities is not clear. Defendants rely on the fact that Johnny Longoria told Jansky about a lawsuit. However, there is insufficient evidence to determine what Jansky was told about the lawsuit. In the excerpt submitted to the Court, it is only clear that he had been told about a "lawsuit against these companies before this one." There is no information about the allegations made in that suit. Although Defendants assert that Jansky knew that too much radiation could hurt him, there is no indication that he was ever told that he had been exposed to an excessive amount of radiation or that co-employees suffered from occupational radiation-induced cancer. There is no evidence that a doctor or anyone else had suggested to Jansky that his cancer could have been caused by his exposure to Defendants' uranium mining and milling activities before he filed this suit. Rather, his doctors did not tell him the cause of his cancer. No one disputes that cancer can be caused by many factors, and in many cases the cause of cancer is never known. Defendants assert that Jansky should have known through the exercise of reasonable diligence that his cancer was due to exposure to Defendants' activities, yet at the same time Defendants assert that all objective evidence available both at the time Jansky was diagnosed and now supports their position that Defendants' activities did not cause Jansky's cancer. Thus, although Jansky was not diligent in attempting to ascertain the cause of his cancer, Defendants have not established as a matter of law that a diligent investigation would have led Jansky to discover the cause of his cancer within the limitations period. Accordingly, Defendants' motion for summary judgment on the basis of limitations is denied with regard to Mr. Jansky's claims.
For example, Defendants note that public concern about the operations prompted the Texas Department of Health to conduct a special monitoring effort, but that the results of that effort did not indicate that levels of radioactivity were any higher than those found in other parts of Texas.
3. Angel Ruiz
As noted previously, Angel Ruiz was diagnosed with non-Hodgkin's lymphoma in November 1998. He joined this lawsuit in the First Amended Complaint, filed on November 29, 2001. Plaintiffs submit Ruiz's affidavit that it was not until July 2001 that he discovered that Defendants' activities were the likely cause of his cancer. Defendants rely primarily on the fact that Ruiz wore a radiation detection badge at work and his participation in the Acuna lawsuit. Ruiz testified at his deposition that he did not read the petition that was filed in the Acuna lawsuit. He testified that he "was just signing up because they were taking people that had worked around the mills, the mines, and all that — the uranium." Ruiz also testified that he and his wife asked the doctor in 1996 or 1997 if his cancer was caused by radiation, but the doctor said he did not know whether it was caused by radiation.
The resolution of the limitations and discovery rule issue is controlled by Childs v. Haussecker. In Childs, the Court emphasized that "accrual will always be deferred until areasonably diligent plaintiff uncovers some evidence of a causal connection between the injury and the plaintiff's occupation." Id. at 41. Further, although the issue was not presented, the Court noted that many courts allow limitations to run separately when more than one, separate disease process results from a particular exposure, and that its formulation of the discovery rule "does not necessarily preclude a plaintiff from recovering damages for every disease that ultimately manifests itself as a result of the occupation disease." Id. The Court also stated that "a latent occupational disease cause of action should not be deemed to accrue absent some objective verification of a causal connection between injury and toxic exposure, provided that the failure to obtain that verification is not occasioned by a lack of due diligence." Id. at 43. Accordingly, "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." Moreover, "a plaintiff's suspicions about the nature and cause of his or her injury, which may be evidenced by the filing of a worker's compensation claim or a lawsuit, represent an additional factor that, when considered with the other facts and circumstances presented by each case, could give rise to conflicting inferences about the plaintiff's knowledge of the injury and its likely cause." Id.
Thus, although Ruiz made allegations in Acuna that Defendants' uranium mining and milling activities caused his cancer, the Texas Supreme Court instructs that this is but a factor to be considered in determining whether Ruiz knew the likely cause of his injury. Defendants offer no summary judgment evidence that Ruiz received any "objective verification" that his cancer was likely caused by his exposure to radiation resulting from Defendants' activities before November 29, 1999. Defendants offer no summary judgment evidence that a doctor told Ruiz before November 29, 1999 that there was a likely causal connection or that he knew of other workers who suffered from radiation-related cancer. Ruiz asked his doctor in 1996 or 1997, and his doctor told him he did not know whether the radiation exposure caused his cancer. Although the fact that Ruiz only inquired once about the possible cause of his cancer and did not exercise due diligence between 1997 and 2001, when he filed suit, Defendants have not offered any summary judgment evidence that a diligent investigation would have led Ruiz to discover before November 29, 1999 that Defendants' uranium-related activities caused his cancer. See Childs, 974 S.W.2d at 47. Accordingly, a fact question remains whether Ruiz knew or should have known through the exercise of reasonable diligence that his injury was likely radiation-related before November 29, 1999. Defendants' motion for summary judgment based on statute of limitations with regard to Angel R. Ruiz's claim for his non-Hodgkin's lymphomais denied.
Plaintiffs' Motion for Partial Summary Judgment (docket no. 138)
Plaintiffs move for partial summary judgment on the Defendants' affirmative defenses of res judicata, limitations, and collateral estoppel. Defendants have withdrawn their defense of collateral estoppel. See Defendants' Response to Plaintiffs' May 30, 2003 Motion for Partial Summary Judgment at 1 [docket no. 155]. Accordingly, Defendants' affirmative defense of collateral estoppel is dismissed and Plaintiffs' Motion for Partial Summary Judgment is dismissed as moot in part with regard to the collateral estoppel defense. Further, because Plaintiffs have not conclusively established that res judicata does not apply to the remaining claims, the Court denies Plaintiffs' Motion with regard to the affirmative defense of res judicata. Because fact issues remain with regard to Foley, Janksy, and Ruiz, the Court denies Plaintiffs' Motion with regard to the affirmative defenses of limitations.
Conclusion
Defendants' affirmative defense of collateral estoppel is DISMISSED. Plaintiffs' Motion for Partial Summary Judgment (docket no. 138) is DISMISSED AS MOOT IN PART and DENIED IN PART. Defendants' Motion for Partial Summary Judgment on Claims Barred by Res Judicata (docket no. 157) is GRANTED IN PART and DENIED IN PART. Defendants' Motion for Partial Summary Judgment on Claims Barred by Statute of Limitations (docket no. 156) is DENIED.