Last Friday, the Texas Supreme Court declined to extend the “latent occupational disease” discovery rule to a plaintiff whose exposure to frac fluid ultimately caused skin cancer, reversing the Thirteenth (Edinburg) Court of Appeals.

“Latent Occupational Disease” Rule in Multi-Injury Cases

In Schlumberger Technology Corporation v. Pasko, the plaintiff alleged he contracted skin cancer as a result of his exposure to frac fluid. The original exposure occurred in May 2013 when the plaintiff was asked to clean up a fluid spill, which contained toxic chemicals – in the cleanup process, the frac fluid came in contact with the plaintiff’s skin, which began to burn, and the plaintiff was in severe pain. Months later he was diagnosed with skin cancer.

The plaintiff sued Schlumberger for negligence, but not until September 2015, after the two-year statute of limitations for negligence had run, if you count back from the date of his exposure. The plaintiff argued, unsuccessfully, that the date should have run from his second discovery of his greater injury – the cancer diagnosis (August 2013).

The Court reasoned that application of the discovery rule for “latent occupational disease” is reserved for “injuries [that] often do not manifest themselves for two or three decades following exposure to the hazardous substance.” Think asbestos, causing mesothelioma. This was not one of those cases: the plaintiff knew he was injured, although he didn’t know he would develop cancer at the time his skin burned, starting the statute of limitations at that time.

Pasko is a clear decision that “injuries result[ing] in the injured person developing more extensive problems or diseases than are first apparent” – what the Court phrased “developmental types of problems” – are not subject to the latent occupational disease rule. The statute of limitations runs from the date the original injury is known.

The Court’s opinion is available here.