Pustejovsky v. Pittsburgh Corning Corp

In Pustejovsky v. Pittsburgh Corning Corp., 980 S.W.2d 828 (Tex. App.-San Antonio 1998, pet. pending), Henry J. Pustejovsky, Jr. had worked from 1954 to 1979 in an aluminum manufacturing plant where he was exposed to asbestos. Pustejovsky, 980 S.W.2d at 829. In 1982, Pustejovsky was diagnosed with asbestosis, a scarring of the lung tissue. Id. He sued a supplier of asbestos products for his injuries and ultimately settled the lawsuit. Id. In 1994, Pustejovsky was diagnosed with terminal mesothelioma, a cancer of the lining of the lungs, which, like asbestosis, is caused by breathing asbestos fibers. Id. Although born out of the same occupational exposure, asbestosis and mesothelioma are separate and distinct diseases. Id. Pustejovksy then sued several other suppliers of asbestos products for the injuries resulting from his cancer. Id. The defendants successfully moved for summary judgment on the basis of limitations, arguing that pursuant to the "single-action rule," which provides that there is but one cause of action for all damages arising out of a defendant's wrongful act, Pustejovsky's cause of action for mesothelioma accrued no later than 1982, the year he learned that he was injured by his occupational exposure to asbestos. Id. at 830. On appeal, the plaintiff argued against application of the "single-action rule" in the context of latent disease cases, contending that the limitations period for each cause of action commences when the discrete illness becomes discoverable. Id. The plaintiff thus asserted that Pustejovsky's mesothelioma claim accrued when he knew, or in the exercise of reasonable diligence should have known, that he had mesothelioma. Id. The Court rejected that position, holding that current Texas law does not recognize separate accrual dates for separate injuries arising out of a single action. Pustejovsky, 980 S.W.2d at 832-33. Rather, the rule is that accrual for the legal injury occurs when "symptoms manifest themselves to such a degree that would put a reasonable person on notice that he or she suffers some injury that is work-related." Id. at 833. Because Pustejovsky learned in 1982 that he was injured from his exposure to asbestos, his claim for additional injuries arising out of that exposure was untimely. Id. In sum, in Pustejovsky v. Pittsburgh Corning Corp., a doctor found scarring in the plaintiff's lungs and diagnosed his condition as asbestosis. Pustejovsky sued Johns-Manville and settled his claim for $ 25,000.00. Almost ten years later, Pustejovsky was diagnosed with terminal mesothelioma, a cancer of the lining of the lungs. Both diseases are caused by breathing asbestos fibers, although mesothelioma is not dependent on a precondition of asbestosis, and less than fifteen percent of those with asbestosis develop mesothelioma. Nevertheless, the San Antonio Court of Appeals held that, under the single action rule, Pustejovsky's cause of action accrued when he first learned he had asbestosis resulting from his occupational exposure to asbestos. Therefore, his claim was barred.