Respondents based their motions for summary judgment on the Texas statute of limitations, claiming that the statute on Mr. Pustejovsky’s claim for cancer began to run not when the cancer was diagnosed but when Mr. Pustejovsky discovered that he had asbestosis, caused by the same toxic exposure, some twelve years earlier. C.R.:Vol.I:57-64; CR:Vol.II:219-20; CR:Vol.II:223-24. The trial court granted the motions, and the San Antonio Court of Appeals affirmed, holding that the statute of limitations began to run when “Mr. Pustejovsky learned in 1982 that he had suffered an injury resulting from his occupational exposure to asbestos.” Pustejovsky v. Pittsburgh Corning Corp., 980 S.W.2d 828, 833 (Tex. App. — San Antonio 1998). As this Court’s recent opinion in Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998) indicates, however, the courts below misapplied the Texas statute of limitations in holding that the claim based on Mr. Pustejovsky’s cancer is time-barred. Moreover, as other jurisdictions have recognized, the application of the statute of limitations to bar Mr. Pustejovsky’s claim based on his malignant mesothelioma would undermine the very purpose of the discovery rule. Both the explicit language of Childs and the policies underlying the discovery rule indicate that Mr. Pustejovsky’s claim for mesothelioma is viably and timely notwithstanding his earlier diagnosis of a nonmalignant asbestos-related injury.

The Decision Below Is Inconsistent with This Court’s Recent Observation in Childs v. Haussecker That “the Discovery Rule Does Not Necessarily Preclude a Plaintiff from Recovering Damages for Every Disease That Ultimately Manifests Itself as a Result of the Occupational Exposure.”

In Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998), the Court for the first time expressly considered “the correct formulation and application of the discovery rule in the latent occupational disease context.” 974 S.W.2d at 33. The Court noted that in Texas the two-year statute of limitations generally begins to run “when a wrongful act causes an injury, regardless of when the plaintiff learns of that injury or if all of the resulting damages have yet to occur.” 974 S.W.2d at 36, citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). But in cases in which “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable,” the discovery rule applies. 974 S.W.2d at 36-37, quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1994).

Latent occupational injury cases fall within this category for several “[c]ompelling reasons.” 974 S.W.2d at 37-38. A latent injury caused by a toxic exposure, the court explained, “is the epitome of the type of injury that is often inherently undiscoverable within the applicable limitations period.” Id. at 38. Moreover, the court observed, the “protective” policies underlying the statute of limitations are not “betrayed” by deferring the accrual date to the date of actual or constructive discovery of the injury. Id. Specifically, the policy of preventing the assertion of stale claims is not impaired by deferring the accrual date because much of the evidence in latent injury cases does not become “stale,” but rather improves, with the passage of time. Id. at 39. And the interest of defendants in repose, the court suggested, is “outweighed” by a deferral rule which allows reasonably diligent plaintiffs an opportunity to seek redress for their injuries while “deterring uneconomical anticipatory lawsuits.” Id., quoting Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 120 (D.C. Cir. 1982). The court concluded that “the approach that best balances the interests implicated in latent occupational disease cases is one that defers accrual 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 work-related.” 974 S.W.2d at 40. In defining the parameters of the discovery rule applicable in latent occupational injury cases, the Court expressly anticipated — and answered — the very questions presented in this case. The Court rejected a formulation of the discovery rule that would delay the running of the statute until the plaintiff discovers that the injury is permanent, in part because Texas law allows a plaintiff to sue for successive injuries resulting from the same toxic exposure:

Our holding that a plaintiff need not know that an injury is a permanent condition before it can be deemed “discovered” will neither punish plaintiffs for their justified forbearance nor overburden defendants and courts by encouraging the filing of premature claims, for two reasons. First, accrual will always be deferred until a reasonably diligent plaintiff uncovers some evidence of a causal connection between the injury and the plaintiff’s occupation. Ordinarily, the symptoms of a latent occupational disease will be relatively serious and evident by the time this connection can be established with any degree of certainty. Second, when more than one, separate disease process results from a particular exposure, many courts have concluded that allowing the statute of limitations to run separately for each distinct disease benefits plaintiffs, defendants, and the judicial system by “deterring uneconomical anticipatory lawsuits.” [FN8] Although the issue is not before us, we note that our 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. For these reasons, imposing an additional “permanency” requirement in our discovery rule jurisprudence is unwarranted.

Childs, 974 S.W.2d at 41-42 (emphasis added), quoting Wilson, 684 F.2d at 120. In footnote 8, the Court cited with approval cases from other jurisdictions holding that a plaintiff exposed to a toxic substance may sue for a latent injury years after the diagnosis of an earlier, distinct injury.

The court’s approval of a discovery rule allowing separate claims for separate injuries caused by the same toxic exposure was thus essential to the court’s holding that the plaintiff’s knowledge of the permanency of the injury is not necessary to trigger the running of the statute of limitations. Without the assumption that Texas law permits successive lawsuits for successive, separate injuries, the Court may well have held that a cause of action for latent injuries does not accrue until the plaintiff knows that the injuries are permanent. “It has been repeatedly held that a proposition assumed or decided in order to establish another proposition which expresses the conclusion of the court is as effectually passed upon and settled as the very question directly decided.” Stephens County v. Hefner, 118 Tex. 397, 16 S.W.2d 804, 807 (1929). Thus, despite the Court’s acknowledgment that the issue of whether the statute of limitations runs separately for each injury caused by a toxic exposure was not before it, the court of appeals erred in characterizing this Court’s language approving the “separate injury rule” as dictum.

A Ruling That Mr. Pustejovsky’s Claim for Mesothelioma Accrued when He Discovered His Previously Manifested, Entirely Independent Asbestos-Related Injury Would Undermine the Purpose of the Discovery Rule as Described in Childs and in Earlier Decisions of This Court.

Even if the Court’s specific comments in Childs are not stare decisis on the issue, they directly undermine the conclusion of the court of appeals that Texas precedent precludes a plaintiff from claiming and recovering damages for successive injuries caused by the same toxic exposure. The Childs Court explicitly noted that it saw nothing in Texas law to preclude successive claims for successive, separate injuries. 974 S.W.2d at 41. Moreover, a rule prohibiting such claims would conflict with the purpose of the discovery rule. As the Court noted in Childs, “permitting the cause of action of a ‘blamelessly ignorant’ plaintiff to accrue before he or she could possibly have been aware of the injury would be unjust.” Id. at 38. The Court has previously used stronger language to condemn an accrual rule that would trigger the running of the statute of limitations before the injured party can discover the injury. See Hays v. Hall, 488 S.W.2d 412, 414 (Tex. 1972) (calling such a rule “absurd”); Gaddis v. Smith, 417 S.W.2d 577, 581 (Tex. 1967) (describing the result as “shocking”).

Courts in other jurisdictions have recognized that barring claims for successive latent diseases would thwart the basic purpose of the discovery rule. See Potts v. Celotex Corp., 796 S.W.2d 678, 684 (Tenn. 1990) (under Tennessee law, claim for mesothelioma did not accrue until it became manifest, notwithstanding earlier diagnosis of asbestosis; “[i]n extending Tennessee’s discovery rule to fit the facts before us, we do no more than adhere to the policy recognized at the inception of that rule”); see also Brumfield v. Avondale Indus., Inc., 674 So.2d 1159, 1162 (La. Ct. App. 1996) (allowing claim for second diagnosed injury from toxic exposure because Louisiana’s prescriptive period “will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong”); Ayers v. Jackson Township, 525 A.2d 287, 300 (N.J. 1987) (a claim for a separate injury caused by the same exposure would be permitted because “under New Jersey’s discovery rule, the cause of action does not accrue until the victim is aware of the injury or disease and of the facts indicating that a third party is or may be responsible”); Sheppard v. A.C. & S. Co., 498 A.2d 1126, 1133 (Del. Super. Ct. 1985) (under Delaware’s discovery rule, “a plaintiff with the misfortune of contracting more than one asbestos-related ailment over a long period of time [should] not be without a remedy for the later and generally more serious and inherently unknowable claims”); Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020, 1027 (Md. 1983) (“[A] determination that a cause of action for lung cancer accrues when asbestosis manifests itself would result in depriving a reasonably diligent person of an opportunity to recover for harm resulting from a latent disease, the existence of which was not known and could not have been known”).

It is true, as the court of appeals noted, that this Court has recognized that “in all discovery rule cases, a cause of action accrues when the plaintiff knows or reasonably should know that he has been legally injured by the alleged wrong, however slightly,” and that “[t]he fact that the plaintiff’s actual damages may not be fully known until much later does not affect the determination of the accrual date . . . .” Pustejovsky, 980 S.W.2d at 831, quoting Murphy v. Campbell, 964 S.W.2d 265, 273 (Tex. 1997). But the language in Murphy does not undermine the proposition that a plaintiff may suffer entirely separate, independent, and successive “legal injuries” from the same tortious conduct, and may pursue redress for each independent injury as it arises. The rule stated in Murphy establishes that progression of or complications from a particular latent injury do not supply the plaintiff with a new cause of action. It does not establish or suggest that the development of one latent injury starts the running of the statute on separate latent injuries that have not yet developed. Courts in other jurisdictions have recognized this distinction, noting that the “separate injury rule” does not apply if the later injury is merely the progression or a complication of an earlier manifested injury. See Kemp v. G.D. Searle & Co., 103 F.3d 405, 410 (5th Cir. 1997) (declining to consider viability of “separate injury rule” in diversity case governed by Mississippi law involving intrauterine device because “[i]n the case at bar, there is but one disease—PID; the infertility is not a separate disease, but a complication of the PID.”); Griffin v. Garratt-Callahan Co., 74 F.3d 36, 40 (2d Cir. 1996) (New York’s separate injury rule did not apply because “Mr. Griffin’s various injuries are not separate and distinct injuries which rose independently from his exposure to chemicals. Rather, his later injuries were all complications that derived from his earlier ones. His lung problems led him to take painkillers; these led to addiction; as a result of that addiction he had seizures; and the seizures were the direct cause of his fractured vertebrae.”).

The rule cited in Murphy did not prevent the Court from observing some seven months later[1] in Childs 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.” The Court’s language in Childs, and the policies underlying the discovery rule, should be applied to enable Mrs. Pustejovsky to pursue her claim based on her husband’s mesothelioma.


The court of appeals held that because Mr. Pustejovsky had previously been diagnosed with an asbestos-related injury, the “single-action rule” barred the later claim for Mr. Pustejovsky’s cancer. Pustejovsky, 980 S.W.2d at 831-33. Under the single-action rule as interpreted by the court, Mr. Pustejovsky had but one cause of action for all damages arising out of the defendants’ wrongful acts; he could not “split” his cause of action and try it piecemeal. Id. at 831. That cause of action, the court held, accrued at the time that Mr. Pustejovsky first discovered any harm resulting from his exposure to asbestos. Id. at 833. The court of appeals cited three cases that, in its view, applied Texas’ single-action rule to bar a claim for an asbestos-related malignancy. Id. at 831, citing Graffagnino v. Fibreboard Corp., 776 F.2d 1307 (5th Cir. 1985), Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129 (5th Cir. 1985) and Pecorino v. Raymark Indus., Inc., 763 S.W.2d 561 (Tex. App. — Beaumont 1988, writ denied), modified on reh’g, 766 S.W.2d 316 (Tex. App. — Beaumont 1989, no writ). Noting the single-action rule’s “deep roots in Texas jurisprudence,” the court felt obliged to apply the rule in the absence of specific guidance from this Court. 980 S.W.2d at 833.

But there are several reasons why the single-action rule does not bar the claim for Mr. Pustejovsky’s claim for cancer. The Pustejovskys never previously sued the defendants in this case for any asbestos-related injury sustained by Mr. Pustejovsky, nor did they receive any type of judgment that could bar their claim. Even had the Pustejovskys obtained a judgment against these defendants in satisfaction of a claim for asbestosis, the judgment could not bar a later claim for an entirely separate subsequent injury because the cancer claim could not have been litigated in the first hypothetical proceeding. As the court of appeals recognized, two of the three policy interests served by the single-action rule — prevention of the litigation of stale claims and conservation of judicial resources — are not served by its application under these circumstances, and the third — repose — is outweighed by the interest in providing innocent plaintiffs a fair opportunity to assert their claims. Whether the single-action rule does not apply by its terms, or whether this case calls for recognition of an “exception” to the single-action rule, the rule does not bar the claim based on Mr. Pustejovsky’s malignant mesothelioma.

The Pustejovskys Did Not Split Their Claim Against These Defendants.

The rule against splitting a cause of action “is simply a branch of the broader doctrine of res adjudicata.” Pierce v. Reynolds, 160 Tex. 198, 201, 329 S.W.2d 76, 78 (1959). That doctrine requires an identity of parties, a judgment on the merits, and a second action based on the claims that were or could have been raised in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996). None of those elements are present in this case.

Although Mr. Pustejovsky brought and settled a claim against Johns-Manville for his asbestosis in 1982, it is undisputed that the Pustejovskys did not assert any claim against, and did not recover any judgment from, the defendants in this proceeding. That was the Pustejovskys’ prerogative; under Texas law, a plaintiff who “allegedly suffered indivisible injury as a result of the tortious acts of two wrongdoers . . . ha[s] the option of proceeding to judgment against any one defendant separately or against all in one suit.” Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984). This is the first and only suit by the Pustejovskys against the defendants for asbestos-related injuries; they are not seeking to relitigate anything.

Nor did the previous claim against Johns-Manville result in a judgment that could be asserted as a bar to this claim. Instead, Mr. Pustejovsky settled his claim for asbestosis with Johns-Manville, and presumably executed a written release of that claim, although the release is not in the record. In that release, Mr. Pustejovsky may or may not have explicitly released all future claims against Johns-Manville arising out of his asbestos exposure. But the Pustejovskys certainly did not release the defendants in this case from liability for any claim for damages that he might assert.

For this reason, Graffagnino v. Fibreboard Corp., 776 F.2d 1307 (5th Cir. 1985) and Pecorino v. Raymark Indus., Inc., 763 S.W.2d 561 (Tex. App. — Beaumont 1988, writ denied), modified on reh’g, 766 S.W.2d 316 (Tex. App. — Beaumont 1989, no writ) are distinguishable. In both Graffagnino and Pecorino, the court held that the plaintiff’s express release and assignment of all future claims in connection with a prior claim for asbestosis barred the assertion of a later claim for an asbestos-related cancer. Graffagnino, 776 F.2d at 1308; Pecorino, 763 S.W.2d at 568-69.[2] In the absence of a formal of release, nothing in the rule against claim splitting prohibits the Pustejovskys from seeking relief — even for the same injury — from other tortfeasors.

Perhaps most importantly, res judicata cannot bar the Pustejovskys’ subsequent cancer claim because that claim could not have been litigated in the prior action. As this Court has noted, “res judicata prevents a plaintiff from ‘splitting’ his cause of action and subsequently asserting claims that could have been litigated in the first instance.” Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985) (emphasis added). “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).

In this case, there is no colorable argument that Mr. Pustejovsky could have litigated his claim for mesothelioma in his prior suit against Johns-Manville for asbestosis. His mesothelioma — an entirely separate and distinct injury — had not yet occurred and would not manifest itself for another twelve years. And Mr. Pustejovsky could not have claimed that his mesothelioma would develop within reasonable medical probability; the evidence in this case indicates that fifteen percent of those diagnosed with asbestosis eventually develop mesothelioma. C.R.:Vol.II:363. Under such circumstances, as the New Jersey Supreme Court has noted, the rule against claim splitting “is literally inapplicable since, as noted, the second cause of action does not accrue until the disease is manifested; hence, it could not have been joined with the earlier claims.” Ayers v. Jackson Township, 525 A.2d 287, 300 (N.J. 1987).

The decisions of this Court cited by the court of appeals in support of its observation that “Texas courts have repeatedly and consistently followed the single-action rule” (Pustejovsky, 980 S.W.2d at 831) do not support the conclusion that Mr. Pustejovsky’s claim for mesothelioma is barred. In Atkins v. Crossland, 417 S.W.2d 150 (Tex. 1967), this Court held that a plaintiff’s claim for accounting malpractice accrued not when the negligence was committed, but when the Commissioner of Internal Revenue assessed the plaintiff with a deficiency. 417 S.W.2d at 153. The Court reasoned that “in the absence of an assessment, injury would not have inevitably resulted.” Id. Although the Court noted in passing the general rule that a cause of action accrues when the tort is committed even if “the damages, or their extent, are not ascertainable until a later date,” the court did not hold or imply that all causes of action — even for separate, distinct injuries not in existence — necessarily accrue at the same time. Id. at 153. In Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438 (1940), the Court rejected the plaintiff’s contention that her claim for fraud accrued not when she discovered that the defendant had misrepresented the value of the properties that he had deeded to her in trust as collateral for a loan, but when she received the proceeds a foreclosure sale of the properties. 140 S.W.2d at 440. The court noted that the plaintiff’s inability to ascertain the exact amount of her loss did not toll the statute. Id. The court did not suggest, however, that an entirely separate, subsequent injury would not give rise to a separate cause of action. Id.

Similarly, the decisions of the courts of appeal cited by the court below simply do not contemplate the unique fact pattern presented by this case. In each case, the injuries upon which the second suit was predicated were in existence at the time of the first suit. Webb v. Persyn, 866 S.W.2d 106, 107 (Tex. App. — San Antonio 1993, no writ) (automobile collision involving property damage and personal injuries; all claims in existence at time of first suit); Clade v. Larsen, 838 S.W.2d 277, 282-83 (Tex. App. — Dallas 1992, writ denied) (plaintiff knew of defendant’s negligent supervision of construction more than two years prior to suit, even though she learned of some specific defects in construction during statutory period); Millers Mut. Fire Ins. Co. v. Mitchell, 392 S.W.2d 703, 707 (Tex. Civ. App. — Tyler 1965, no writ (automobile accident involving property damage and personal injuries). Other courts have applied the rule to preclude suits based on progression or complication of injuries known and redressed in a previous suit. Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 130 S.W.2d 1048, 1053 (Tex. Civ. App. 1939), rev’d on other grounds, 138 Tex. 1, 156 S.W.2d 265 (1941).

But no Texas court has applied the single-action rule to bar a claim based on an entirely separate, independent injury that arose from the defendant’s wrongful conduct after the assertion of the prior claim. On the contrary, Texas courts have recognized that separate, independent injuries can arise out of the same relationship between the parties, giving rise to separate actionable claims. See, e.g., Universal Life & Accident Ins. Co. v. Shaw, 139 Tex. 434, 440, 163 S.W.2d 376, 379 (1942) (insurer’s wrongful cancellation of disability policy did not give rise to single cause of action; rather, each failure to pay under the policy “gave rise to a separate cause of action, and the insured had a right of action for each weekly benefit, each being distinct from the other”); Reserve Life Ins. Co. v. Shelton, 415 S.W.2d 281, 285 (Tex. Civ. App. — Austin 1967, writ dism’d w.o.j.) (insurer refused to pay claims pursuant to health insurance contract; “[s]ince appellee had three separate and distinct causes of action, maturing at different times and sued on separately as the claims accrued, . . . judgment in the first cause will not constitute res judicata as to the subsequent suits”); Townewest Homeowners Ass’n, Inc. v. Warner Communication Inc., 826 S.W.2d 638, 640 (Tex. App. — Houston [14th Dist.] 1992, no writ) (“every time appellees failed to make their quarterly payments, as promised under the contract, the limitation period would begin to run as to those particular payments because they were due and payable”).

In 1985, the Fifth Circuit predicted that Texas would apply the single-action rule to merge claims for asbestosis and future undeveloped cancer into a single cause of action. Gideon v. Johns-Manville Sales Corp., 761 S.W.2d 1129 (5th Cir. 1985). Fourteen years later, it is obvious that the Fifth Circuit’s “Erie-guess” was wrong, and this Court is not bound by it.[3] In predicting that Texas would hold that exposures to toxic substances would give rise to only one cause of action even if they cause separate, successive injuries, the Gideon court could not have known that its application of the single-action rule would be rejected by virtually every state court to consider the question and would place Texas outside the legal mainstream. Moreover, at the time the court decided Gideon, this Court had not yet formulated the discovery rule that applies in a latent occupational disease case.[4]

Thus, Texas’ the single-action rule does not compel the conclusion that Mr. Pustejovsky’s claim for mesothelioma accrued when he discovered his asbestosis caused by the same exposure. On the contrary, the rule by its terms does not apply because Mr. Pustejovsky could not have sued based on mesothelioma at the time of the discovery of his asbestosis. Alternatively, as shown below, the Court should recognize an exception to the single-action rule that would permit separate claims for each independent, successive latent injury that occurs from a toxic exposure.

The Policies Underlying Texas’ Single-Action Rule Are Not Served by Its Application To Bar a Subsequent Claim for an Entirely Separate Injury That Did Not Exist and Was Not Reasonably Likely To Occur at the Time of the First Suit. Countervailing Policies Weigh Against Application of the Rule. Therefore, the Court Should Recognize an Exception to the Single-Action Rule Which Would Allow Separate Claims for Separate, Successive Injuries Caused by the Same Toxic Exposure.

The court below recognized that the purpose of the single-action rule “is to facilitate repose, retard the litigation of stale claims, and conserve judicial resources.” Pustejovsky, 980 S.W.2d at 831. The court also acknowledged that two of these goals are not promoted by application of the rule under the circumstances presented in this case. Id.

The claim for Mr. Pustejovsky’s mesothelioma could hardly be characterized as “stale.” Mr. Pustejovsky brought suit on the claim within two months from the time that it arguably came into existence. As this Court noted in Childs, in cases like this the crucial evidence improves as “the plaintiff’s illness progresses from being inherently undiscoverable to symptomatic to diagnosable.” 974 S.W.2d at 39. Were it not for the fortuity that he had earlier developed a nonmalignant asbestos-related injury, there would be no colorable contention that Mr. Pustejovsky’s claim for mesothelioma is untimely.

Nor does application of the rule under these circumstances necessarily conserve judicial resources. Although we do not suggest that Mr. Pustejovsky, or any plaintiff diagnosed with a non-malignant asbestos-related illness, should forego compensation for that injury, a rule requiring plaintiffs to claim damages for the risk that they will develop future independent injuries virtually compels plaintiffs to assert such claims. Not only do claims for risk of future injury — as opposed to claims for present injury and for present fear of future injury — produce speculative and unreliable results for the parties, they are complicated and burdensome on the courts to administer. It is far preferable, in the interest of ease of administration as well as in the interest of fairness to the parties, to allow plaintiffs to bring claims for cancer when the cancer occurs, and not when the first biological response to the toxic substance becomes manifest.

The only interest clearly served by application of the single-action rule in this context is the defendants’ interest in repose. But as this Court observed in Childs, “the value of requiring plaintiffs to bring a claim within a fixed period of time may be outweighed in some latent injury cases by ‘the inequity of depriving a reasonably diligent plaintiff of an opportunity to seek redress at all.’” 974 S.W.2d at 39, quoting Glimcher, Statutes of Limitations and the Discovery Rule in Latent Disease Claims: An Exception or the Law, 43 U. Pitt. L. Rev. 501, 514-15 (1982).

Against the policies underlying the single-action rule, the court should consider interests strongly counseling against application of the rule in this context. Most obviously, application of the rule is profoundly unfair because, as the court of appeals acknowledged, it “may result in the routine under-compensation of persons who contract more than one asbestos-caused disease.” Pustejovsky, 980 S.W.2d at 831. This is so because the universal rule is that a plaintiff may collect damages only for future consequences of present injuries that more likely than not will occur. Id. In order to recover for “future mesothelioma” in his asbestosis claim, Mr. Pustejovsky had to show that, within reasonable medical probability, he would develop mesothelioma. But the evidence in this case would not have supported such an allegation. C.R.:Vol.II:363 (less than fifteen percent of persons with asbestosis develop mesothelioma); see also Pustejovsky, 980 S.W.2d at 831 (“[b]ased on the medical literature, asbestosis victims will typically be unable to sustain this burden”); Dartez v. Fibreboard Corp., 765 F.2d 456, 467 (5th Cir. 1985) (the “proof [did] not establish a reasonable medical probability that Dartez will develop either cancer or mesothelioma because of his exposure to defendants’ products”); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 120 (D.C. Cir. 1982) (risk of asbestosis victim developing mesothelioma was less than fifty percent). The single-action rule applied by the court of appeals, coupled with the rule that future damages that are not likely to occur are not recoverable, deprives persons like Mr. Pustejovsky of any real chance to recover, at any time, any portion of damages attributable to his risk of mesothelioma.

On the other hand, application of the single-action rule could result in a windfall to plaintiffs if the risk of the future, separate injury exceeds fifty percent. All such persons could receive their entire damages whether or not the future injury actually occurs. “Persons who contract the first, but not the second, disease will receive a windfall and, in the aggregate, the defendant will overcompensate the injured class.” Wilson, 684 F.2d at 120 n.45. Even if Texas law of damages were modified to allow a person who has less than a fifty percent chance of developing the future separate injury to recover a percentage of the future damages should he or she develop the harm (i.e., a plaintiff with a fifteen percent chance of developing mesothelioma would receive fifteen percent of the damages that would be incurred if the mesothelioma develops), the inequity would not be eliminated: “plaintiffs who in fact sustain the future harm are undercompensated; those who escape it receive a windfall.” Id. at 119 n.44.

Texas law need not foster such arbitrary and unpredictable results. The single-action rule permits exceptions, and requires litigation of all claims in a single proceeding only “if practicable.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex. 1992). As other courts have recognized, “the procedural rule against splitting causes of action must be relaxed when equitable considerations demand it.” Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517, 521 (Fla. Ct. App. 1985); see also Devlin v. Johns-Manville Sales Corp., 495 A.2d 495, 502 (N.J. Super. Ct. 1985) (rejecting application of “single controversy rule” to bar claim for separate later-occuring latent disease because such application would impart “ultimate meaning to the phrase ‘catch 22’”). In cases such as this, in which a person develops medically separate and distinct injuries that occur at different times, the person should be permitted to assert a separate claim for each separate injury. Neither the statute of limitations nor the prohibition against claim splitting should preclude the later claim.


Many courts have considered and written published opinions on the issue of whether more than one cause of action can accrue from a person’s wrongful exposure to a toxic substance. Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982) is the first and most frequently cited decision on this issue; this Court cited and discussed the case with approval in Childs, 974 S.W.2d at 38-41& n.8. In Wilson, the plaintiff was diagnosed with asbestosis in 1973, was diagnosed with mesothelioma in 1978, and died soon thereafter. 684 F.2d at 113-14. The trial court ruled that the action was time-barred because of the earlier asbestosis diagnosis. Id. at 114-15. The court of appeals reversed and remanded, holding that the asbestosis diagnosis in 1973 “did not start the clock on [plaintiff’s] right to sue for the separate and distinct disease, mesothelioma, attributable to the same asbestos exposure, but not manifest until February 1978.” Id. at 120-21. Writing for the court, then-Judge Ruth Bader Ginsberg observed that “[i]n latent disease cases, [the] community interest would be significantly undermined by a judge-made rule that upon manifestation of any harm, the injured party must then, if ever, sue for all harms the same exposure may (or may not) occasion some time in the future.” Wilson, 684 F.2d at 119.

Since publication of Wilson, the highest courts of seven states have considered this issue. All seven have concluded that neither the statute of limitations nor the single-action rule precludes claims for successive, separate injuries caused by toxic substances. See

Simmons v. Pacor, Inc., 674 A.2d 232, 237 (Pa. 1996); Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74 (Iowa 1991); Miller v. Armstrong World Indus., Inc., 817 P.2d 111 (Colo. 1991); Potts v. Celotex Corp., 796 S.W.2d 678, 685 (Tenn. 1990); Mauro v. Raymark Indus., Inc., 561 A.2d 257 (N.J. 1989) and Ayers v. Jackson Township, 525 A.2d 287 (N.J. 1987); Larson v. Johns-Manville Sales Corp., 399 N.W.2d 1 (Mich. 1986); Sybron Corp. v. Anderson, 310 S.E.2d 232 (Ga. 1983) (affirming lower court’s opinion in Anderson v. Sybron Corp., 299 S.E.2d 160 (Ga. Ct. App.), republished at 353 S.E.2d 816); and Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020 (Md. 1983).[5]

The overwhelming majority of lower state courts and federal courts applying state law have reached the same result. See Golod v. Hoffman LaRoche, 964 F. Supp. 841 (S.D.N.Y. 1997) (applying New York law); Brumfield v. Avondale Indus., Inc., 674 So.2d 1159 (La. Ct. App. 1996); Marinari v. Asbestos Corp., Ltd., 612 A.2d 1021 (Pa. Super. Ct. 1992); In re Hawaii Federal Asbestos Cases, 734 F. Supp. 1563 (D. Haw. 1990) (applying Hawaii law); Fusaro v. Porter-Hayden Co., 548 N.Y.S.2d 856 (N.Y. Sup. Ct. 1989), aff’d, 565 N.Y.S.2d 357 (1st Dep’t 1991); Burns v. Jacquays Mining Corp., 752 P.2d 28 (Ariz. Ct. App. 1987); VaSalle v. Celotex Corp., 515 N.E.2d 684 (Ill. Ct. App. 1987); Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315 (5th Cir. 1986) (applying maritime law); Devlin v. Johns-Manville Sales Corp., 495 A.2d 495 (N.J. Super. Ct. 1985); Eagle-Picher Indus., Inc. v. Cox, 481 So.2d 517 (Fla. Ct. App. 1985); Sheppard v. A.C. & S. Co., 498 A.2d 1126 (Del. Super. Ct. 1985); Fearson v. Johns-Manville Sales Corp., 525 F. Supp. 671 (D.D.C. 1981) (applying D.C. law). A comprehensive list of the cases from other jurisdictions addressing the accrual issues raised in this case is appended to this brief.

The only courts that have diverged from the widespread consensus that separate latent injuries may accrue at different times are federal courts predicting state law under the Erie doctrine. See Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir. 1986); Gideon v. Johns-Manville Sales Corp., 761 S.W.2d 1129 (5th Cir. 1985); and Matthews v. Celotex Corp., 569 F. Supp. 1539 (D.N.D. 1983). The courts in these diversity cases felt constrained by state precedent to apply the general prohibition against splitting causes of action. See, e.g., Joyce, 785 F.2d at 1205 (recognizing that result of prohibition is “harsh when applied to asbestos-related or other ‘creeping disease’ cases where, by definition, there may be gaps between the onset of various distinct injuries caused by exposure to asbestos” but concluding that change in the rule “must come from the Supreme Court of Virginia or the General Assembly of that state”); Matthews, 569 F. Supp. at 1542 (acknowledging the Wilson decision but noting that “this apparently is not the law in North Dakota”). Moreover, in none of the cases did the court apply the single-action rule to bar entirely a mesothelioma claim based on the earlier accrual of a claim for nonmalignant asbestos-related injury. Joyce, 785 F.2d at 1205 (finding claim for asbestosis barred based on earlier development of nonmalignant pleural thickening); Gideon, 761 F.2d at 1137 (finding that trial court properly admitted evidence concerning plaintiff’s risk of cancer in asbestosis case because plaintiff had “but one cause of action for all the damages caused by the defendants’ legal wrong”); Matthews, 569 F. Supp. at 1542 (finding survival claim based on later developing mesothelioma barred, but allowing wrongful death claim because under North Dakota law a separate and independent claim accrues upon the death of the decedent). These federal decisions, none of which is less than a decade old, do not significantly weaken the strength of the consensus of our nation’s courts that more than one cause of action can accrue from a toxic exposure.

This Court has observed that “when we are called upon to decide a question of first impression in this state, we may look to other jurisdictions for guidance in reaching our decision on the question.” Hollins v. Rapid Transit Lines, Inc., 440 S.W.2d 57, 59 (Tex. 1969). Inarguably, the mainstream view is that the common law single-action rule does not prevent a person who has previously discovered a latent injury caused by a toxic substance from recovering damages for, a subsequent, independent latent injury caused by the same toxic substance. The mainstream view is fully consistent with Texas case law and policy, and should be explicitly endorsed by the Court.


For the reasons expressed above, Petitioner Joe Ann Pustejovsky prays that the Court reverse the judgments of the court of appeals and the trial court, and remand her action for further proceedings on the merits.

Respectfully submitted,

The Centrum Building
3102 Oak Lawn Avenue
Suite 1100
Dallas, Texas 75219
(214) 521-3605
(214) 520-1181 (Fax)

  1. The court decided Murphy on December 11, 1997, and decided Childs on July 3, 1998. 964 S.W.2d at 265; 974 S.W.2d at 31.
  2. As an additional basis for its decision, the Fifth Circuit in Graffagnino invoked its prior ruling in Gideon that under Texas law, “only one cause of action for exposure to asbestos fibers existed.” 776 F.2d at 1309. As shown later in this brief, the court’s reliance on Gideon to support this alternative theory was misplaced, because Gideon did not accurately predict Texas law. Similarly, in Pecorino, Justice Brookshire cited the single-action rule and statute of limitations as “separate and independent grounds” for the court’s conclusion that the cancer claim was barred. 763 S.W.2d at 569. But Justice Brookshire was the only member of the three-justice panel who relied on the single-action rule; Justice Dies concurred in the court’s judgment, stating that “[t]he real problem here . . . is that the instrument which settled the asbestosis claim does not limit itself to that claim,” id. at 577, and Justice Burgess dissented from the judgment, arguing that the mesothelioma claim was viable. Id. at 576-77. Moreover, on rehearing, Justice Brookshire noted his agreement with Justice Dies’ concurring opinion, which relied entirely on the release. 766 S.W.2d at 317. Thus, it is uncertain whether any member of the Pecorino court believed that the single-action rule barred the subsequent cancer claim. In any event, these alternative “holdings” are unsupported by Texas precedent and policy, and are not binding on this Court.
  3. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); see also Amberboy v. Societe deBanque Privee, 831 S.W.2d 793, 797 (Tex. 1992) (“To the extent that Federal Courts have ventured an ‘Erie-guess’ as to the applicable Texas law, and guessed differently from our answer to the present certified question, . . . we do not feel constrained to address those opinions except to respectfully say that we have decided this issue of unsettled Texas law differently from the way they have predicted.”).
  4. On the other hand, this Court was fully aware of Gideon when it anticipated in Childs that it would permit plaintiffs to bring successive claims for successive, medically distinct injuries. Childs, 974 S.W.2d at 41 & n.8 (citing Gideon as contrary authority).
  5. In addition to this Court, the high courts in California and Wisconsin are currently considering the issue. See Mitchell v. Asbestos Corp., 957 P.2d 868 (Cal. 1998) (granting petition for review) and Richmond v. A.P. Green Indus., Inc., 970 P.2d 408 (Cal. 1999) (granting petition for review and deferring further action pending consideration of Mitchell); Sopha v. Owens-Corning Fiberglas Corp., ___ N.W.2d ___, 1999 WL 11858 (Wis. Ct. App. Jan. 14, 1999) (certifying issue to Wisconsin Supreme Court).