1. The Basics on Limitations
1. In General
2. Statutory Limitations Periods
3. Calculating Statutes of Limitations
4. Hand-Filing A Petition
5. Filing A Petition by Mail
   1. Application of Rule
6. The Effect of Holidays and Weekends
   1. Application of the Rule
2. Due Diligence in Service of Process
   1. The Rule
   2. Application of the Rule
3. Misnomer v. Misidentification
   1. The Rule
   2. Application of the Rule
      1. Misnomer
      2. Misidentification & The Equitable Exception Thereto
4. The Discovery Rule
   1. The Rule
   2. Burden of Proof on Summary Judgment and at Trial
   3. Application of the Discovery Rule - Knowledge of Injury vs. Causation
   4. Applicability of the Discovery Rule in Personal Injury Cases
      1. Sexual Abuse – Discovery Rule Inapplicable

      2. Roller Coaster Accident – Discovery Rule Inapplicable
      3. Automobile Accident – Discovery Rule Inapplicable
      4. Auto Accident/Products Liability – Discovery Rule Inapplicable
      5. Auto Accident/Dram Shop Liability – Discovery Rule Inapplicable
      6. Work Related Hearing Loss - Discovery Rule Inapplicable
      7. Transmission of HIV: – Discovery Rule Applicable
      8. Toxic Torts/Latent Diseases – Discovery Rule Generally Applicable
      9. Wrongful Death
5. Conclusion

1. The Basics on Limitations:
   1. In General:

      Statutes of limitations are defined as "statutes of federal governments and various states setting maximum time periods during which certain actions can be brought or rights enforced." Black’s Law Dictionary 972 (1990). Although statutes of limitations sometimes bar a party from bringing an otherwise valid claim, they nonetheless serve an important role in our legal system in that they safeguard against fraud, protect the courts from stale claims, and "compel the exercise of a right within a reasonable time so that the opposite party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds." Continental S. Lines, Inc. v. Hilland, 528 S.W.2d 828, 831 (Tex. 1975); accord Pierson v. SMS Financial II, L.L.C., 959 S.W.2d 343, 347 (Tex. App.-Texarkana 1998, no pet.) (citing Willis v. Maverick¸760 S.W.2d 642 (Tex. 1988).

      Generally in Texas, the amount of time a party has to file a lawsuit is statutorily governed by the type of claim the party intends to bring. See e.g. Tex. Civ. Prac. & Rem. Code § 16.001 et seq. However, in addition to these general rules, there are numerous statutory and common law factors that affect when this limitations time frame begins and ends and that ultimately determine whether an otherwise valid claim is timely filed. Because the lack of a working knowledge regarding the various statutes of limitations under Texas law and how they are applied under certain facts can ultimately bar a client’s claim and prejudice his/her right of recovery, an attorney must educate him/herself on this topic in order to avoid an unwanted malpractice claim. Therefore, this primer on the statutes of limitations under Texas law is designed to protect plaintiffs’ attorneys and their clients from the common limitations pitfalls and to educate defense attorneys on when a personal injury claim can be disposed of on summary judgment on the basis of limitations.

   2. Statutory Limitations Periods:

      While this paper focuses on the application of the statutes of limitations in various personal injury contexts, additional non-personal injury statutory provisions relating to limitations have been included in this section.

      1. Assault – Two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      2. Breach of Express or Implied Warranty – Four-year limitations period. Tex. Bus. & Com. Code Ann. § 7.725.

      3. Breach of Promise of Marriage – One-year limitations period pursuant. Tex. Civ. Prac. & Rem. Code § 16.002.

      4. Breach of Contract – Four-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.004; See Morriss v. Enron Oil & Gas Company, 948 S.W.2d 858, 869 (Tex. App.--San Antonio 1997, no writ).

      5. Breach of Duty of Good Faith & Fair Dealing in Insurance – Two year limitations period. See Liberty Mutual Fire Ins. Co. v. Richards, 810 S.W.2d 232, 233-34 (Tex. App.--Houston [14th Dist.] 1991, writ denied). The limitations period begins to run from the day the insurer wrongfully denies coverage. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990).

      6. Civil Conspiracy – Two-year limitations period. See Martz v. Weyerhaeuser Co., 965 S.W.2d 584, 587 (Tex. App.--Eastland 1998, no pet.) (citing Cathey v. First City Bank of Aransas Pass, 758 S.W.2d 818, 822 (Tex. App.--Corpus Christi 1988, writ denied)).

      7. Contractual Limitations Period – Parties cannot enter into a contractual limitations period that is less than two years. As a result, a stipulation, contract or agreement that does so is void under Texas. Tex. Civ. Prac. & Rem. Code § 16.070

      8. Contribution or Indemnity – The limitations period for a claim of contribution or indemnity is not governed by the underlying plaintiff’s limitations period and thus does not begin to run until the contribution or indemnity claimant has sustained a judgment against it. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 208 (Tex. 1999); Amoco Chemicals Corp. v. Malone Service Co., 712 S.W.2d 611, 614-15 (Tex. App.--Houston [1st Dist.] 1986, no writ).

      9. Conversion of Personal Property - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      10. Counterclaim or Cross-Claim – Section 16.069 of the Tex. Civ. Prac. & Rem. Code states the following: "If a counterclaim or cross-claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross-claim even though as a separate action it would be barred by limitations on the date the party’s answer is required. The counter claim or cross claim must be filed not later than the 30^th day after the date on which the party’s answer is required."

      11. Debt - four-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.004.

      12. Defamation – one-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.002; see also Akin v. Santa Clara Land Co., Ltd., 2000 WL 1752755, * 3 (Tex. App.--San Antonio 2000, pet. filed).

      13. D.T.P.A. Violations – two-year limitations period. Tex. Bus. & Com. Code § 17.565.

      14. False Imprisonment – two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      15. Fraud – four-year limitations period. See Slater v. National Medical Enterprises, Inc., 962 S.W.2d 228, 233 (Tex. App.--Fort Worth 1998, pet. denied) (citing Williams v. Khalaf, 802 S.W.2d 651, 654 (Tex. 1990)).

      16. Forcible Entry and Detainer - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      17. Intentional Infliction of Emotional Distress – two-year limitations period. See Martz v. Weyerhaeuser Co., 965 S.W.2d 584, 587 (Tex. App.--Eastland 1998, no pet) (citing Bhalli v. Methodist Hosp., 896 S.W.2d 207 (Tex. App.--Houston [1st Dist.] 1995, writ denied)).

      18. Invasion of Privacy – two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003; see Collins v. Collins, 904 S.W.2d 792, 804 (Tex. App--Houston [1st Dist.] 1995, writ denied).

      19. Legal Malpractice – two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003; see Willis v. Maverick, 760 S.W.2d 642, 643 (Tex. 1988).

      20. Libel – one-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.002.

      21. Malicious Prosecution – one-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.002.

      22. Medical Malpractice – Pursuant to the Medical Liability and Insurance Improvement Act, there is an absolute two-year limitations period and no application of the discovery rule with regard to medical malpractice claims. Tex. Rev. Civ. Stat. Ann. Art. 4590i, § 10.01. The limitations period is measured from one of three dates: (1) the date of the tort; (2) the last date of the relevant course of treatment; and (3) the last date of the relevant hospitalization. Wright v. Fowler, 991 S.W.2d 343, 350 (Tex. App.--Fort Worth 1999, no pet.) (citing Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998).

      23. Misappropriation of Trade Secrets – three-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.010.

      24. Negligence - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      25. Negligent Misrepresentation - two-year limitations period. See Milestone Properties, Inc. v. Federated Metals Corp., 867 S.W.2d 113, 118 (Tex. App.--Austin 1993, no writ).

      26. Nuisance - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003; Loyd v. Eco Resources, Inc., 956 S.W.2d 110, 126 (Tex. App.--Houston [14th Dist.] 1997, no pet.).

      27. Partnership – Settlement of Partnership Accounts - four-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.004.

      28. Personal Injury - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      29. Personal Injury Arising from Sexual Assault (Penal Code § 22.011) – five-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.0045. Note that the limitations period is tolled upon filing of the petition by any person in an appropriate court alleging that the identity of the defendant in the suit is unknown and designating the unknown defendant as John or Jane Doe. The person filing the petition shall proceed with due diligence to discover the identity and ultimately amend the petition naming the real defendant not later than the 30^th day after same is identified to plaintiff. Id.

      30. Personal Injury Arising from Aggravated Sexual Assault – (Penal Code § 22.021) - five-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.0045. Note that the limitations period is tolled upon filing of the petition by any person in an appropriate court alleging that the identity of the defendant in the suit is unknown and designating the unknown defendant as John or Jane Doe. The person filing the petition shall proceed with due diligence to discover the identity and ultimately amend the petition naming the real defendant not later than the 30^th day after same is identified to plaintiff. Id.

      31. Residual Limitations Period – four-year limitations period. Specifically, section 16.051 of the Tex. Civ. Prac. & Rem. Code contains a residual limitations period which states "every action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues."

      32. Slander – one-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.002.

      33. Survival – Because a survival action is derivative of the decedent’s right to sue, if the decedent would have been time-barred from bringing a cause of action at the time of his/her death, his/her death does not revive the action or permit his/her estate to bring a survival suit and the claims of his/her beneficiaries are barred as well. See Ingersoll-Rand Co. v. Russell, 841 S.W.2d 343, 345 (Tex. 1992). However, a survival claim is not time-barred if contained in an amended or supplemental pleading and it relates to a timely filed cause of action and is not based upon a wholly new, distinct or different occurrence. See, § 16.068 Tex. Civ. Prac. & Rem Code.

      34. Taking or Detaining Personal Property of Another - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      35. Tortious Interference with a Contract - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003; see Stroud v. VBSFB Holding Corp., 917 S.W.2d 75, 81 (Tex. App.--San Antonio 1996, writ denied).

      36. Trespass for Injury to Estate or Property of Another - two-year limitations period. Tex. Civ. Prac. & Rem. Code § 16.003.

      37. Wrongful Death – two-year limitations period from the death. Tex. Civ. Prac. & Rem. Code § 16.003. However, because a wrongful death action is derivative of the decedent’s right to sue, if the decedent would have been time-barred from bringing a cause of action at the time of his/her death, so too are his beneficiaries. See Ingersoll-Rand Co. v. Russell, 841 S.W.2d 343, 345 (Tex. 1992); § 71.003(a) Tex. Civ. Prac. & Rem. Code.

   3. Calculating Statutes of Limitations:

      Limitations begins to run on the day a cause of action accrues. A cause of action generally accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of the injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). However, in calculating the limitations period, pursuant to Texas Rule of Civil Procedure 4, the day of the injury causing act or event is not to be included. Therefore, the question then becomes, how is a limitations period computed pursuant to these rules?

      The court in Fisher v. Westmont Hospitality, 935 S.W.2d 222, 224-25 (Tex. App.--Houston [14th Dist.] 1996, no writ) addressed this very issue and held that the limitations period begins to run the day following the injury causing event and continues until two, three, four, etc. calendar months or years (depending on the applicable limitations period) following the date the event occurred. For example, where a plaintiff is injured on January 1, 2000, her cause of action accrues on that date, the statute of limitations begins to run on January 2, 2000 and because it is a personal injury action, expires two calendar years from the date of the incident, namely January 1, 2002. See also e.g. Cortinas v. Wilson, 851 S.W.2d 324, 326 (Tex. App.--Dallas 1993, no writ) (holding that where an accident occurred on June 17, 1989, the two-year statute of limitations period expired on June 17, 1991).

   4. Hand-Filing A Petition:

      It is the rule in Texas that a document is deemed filed at the time it is delivered to the clerk, regardless of whether it is file-marked at that time. Garza v. Williams Bros. Constr. Co., 879 S.W.2d 290, 293 (Tex. App.--Houston [1st Dist.] 1994, no writ) (citing Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex. 1979)). The purpose of this rule is to protect a diligent party from being penalized by the errors of the court clerk. Id. Accordingly, if a party deposits a petition with the clerk on the last day of limitations, but the clerk fails to file-mark the document until the next day, the petition is nonetheless timely.

   5. Filing A Petition by Mail:

      Texas Rule of Civil Procedure 5 addresses the enlargement of time for filing when a document is filed via U.S. mail as opposed to hand-delivery to the clerk’s office. Specifically, Rule 5 states in relevant part the following:

      "If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing."

      In short, this rule essentially deems documents filed the day they are mailed rather than when they are actually file-marked as long as the document is received by the clerk within 10 days of the filing deadline.

      1. Application of Rule

         The tenet set forth in Rule 5 was applied in the statute of limitations context in Danesh v. Houston Health Clubs, Inc., 859 S.W.2d 535 (Tex. App.--Houston [1st Dist.] 1993, writ ref’d). In that case, the plaintiff’s cause of action accrued on October 17, 1989 when she slipped and fell on the defendant’s property. While her original petition was mailed to the clerk on October 14, 1991, before the limitations period ran, it was not filed by the clerk until October 18, 1991, after the limitations period ran. Consequently, the defendant asserted limitations as a defense to plaintiff’s claims. However, the trial court held that the document was deemed filed under Texas Rule of Civil Procedure 5 on the day it was mailed not the day it was received and thus plaintiff’s original petition was timely filed. Id. at 537.

         Texas courts have also addressed the issue of what evidence is sufficient to overcome summary judgment asserting limitations via the application of Rule 5 when there is no post-mark to constitute prima facie evidence of mailing date. First, in Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693-94 (Tex. 1995), the Texas Supreme Court held that the affidavit of an attorney asserting that a document was timely mailed to the proper clerk’s office is sufficient to extend time under the mailbox rule. Also, in Arnold v. Shuck, 24 S.W.3d 470, 472 (Tex. App.--Texarkana 2000, pet. filed), the Texarkana Court of Appeals extended this rule and held that the affidavit of a legal assistant regarding when a document was mailed to the appropriate clerk is also competent summary judgment evidence.

   6. The Effect of Holidays and Weekends

      The Civil Practice and Remedies Code addresses the issue of how the limitations period is calculated if the last day falls on a weekend or a holiday. Specifically, this statutory provision states as follows:

      "if the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business."

      Tex. Civ. Prac. & Rem. Code Ann. § 16.072. Similarly, Texas Rule of Civil Procedure 4 states the following:

      "The last date of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday."

      Pursuant to either statute, a legal holiday has been held to be "any day which the commissioners court in the county in which the case is pending has determined to be a holiday, or on which the clerk’s office for the court in which the case is pending is officially closed." Martinez v. Windsor Park Development Co., 833 S.W.2d 950, 951 (Tex. 1992) (citing Miller Brewing Co. v. Villarreal, 829 S.W.2d 770 (Tex. 1992)).

      1. Application of the Rule:

         In Martinez v. Windsor Park Development Co., 833 S.W.2d 950, 951 (Tex. 1992) the Plaintiff’s personal injury cause of action accrued on April 13, 1988 and as a consequence expired on April 13, 1990. However, the last day of the limitations period in this case fell on Good Friday, a holiday on which the Bexar County Commissoners Court had ordered the courthouse closed. Consequently, the Plaintiff did not file her lawsuit until the following Monday. Although the trial court granted summary judgment based on limitations against the plaintiff and the appellate court affirmed, the Texas Supreme Court reversed holding that the limitations period was extended, due to the legal holiday on Friday which was the last day of the limitations period, until the following Monday, the next day the court was open.

2. Due Diligence in Service of Process
   1. The Rule

      In order to timely bring a lawsuit within the limitations period, a plaintiff must not only file the lawsuit before the statute runs, but also must use due diligence in having the defendant served. Gant v. DeLeon, 786 S.W.2d 259, 259 (Tex. 1990); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.--Houston [1st Dist.] 1999, pet. denied); Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex. App.--Dallas 1999, no pet.). As a consequence, limitations problems generally arise where plaintiffs timely file their lawsuits within the applicable limitations period, but wait weeks or even months to serve the defendants with process.

      The general rule is that "when a plaintiff files a petition within the limitations period, but does not serve the defendant until after the statutory period has expired, the date of service relates back to the date of filing if the plaintiff exercised due diligence in effecting service." Gant v. DeLeon, 786 S.W.2d at 259; Lexington Ins. Co. v. Buckingham Gate, Ltd., Inc., 993 S.W.2d 185, 190 (Tex. App.--Corpus Christi 1999, pet. denied). However, if due diligence was not exercised, the lawsuit is considered filed on the actual date of service and does not relate back. Holt v. D’Hanis State Bank, 993 S.W.2d 237, 241 (Tex. App.--San Antonio 1999, no pet.). Therefore, the key question under these circumstances is what actions must be taken and within what time frame must those actions occur in order to meet this due diligence requirement?

      If a defendant believes that a plaintiff failed to meet the due diligence requirement, the defendant has the burden to show on summary judgment that as a matter of law diligence was not used in effecting service. Gant v. DeLeon, 786 S.W.2d at 259. The burden then shifts to the plaintiff to explain the delay. Holt v. D’Hanis State Bank, 993 S.W.2d at 241. Further, the reasonableness of a plaintiff’s delay in serving citation is usually a question of fact, although the issue of due diligence can be determined as a matter of law if a plaintiff fails to come forth with any valid excuse explaining why service was not procured promptly or if the lapse of time and the plaintiff’s action or inaction conclusively negates diligence.¹ Clemons v. Denson, 981 S.W.2d at 946; Lexington Ins. Co. v. Buckingham Gate, Ltd., Inc., 993 S.W.2d at 190; Medina v. Lopez-Roman, 2000 WL 1755093, *6 (Tex. App.--Austin 2000, no pet. h.). Note that, "the diligence required to meet this test is that which an ordinary prudent person would use under the same circumstance." Lexington Ins. Co. v. Buckingham Gate, Ltd., Inc., 993 S.W.2d at 190.

      It is also important to recognize that the duty to use due diligence continues from the date the suit is filed until the date the defendant is served. Taylor v. Thompson, 4 S.W.3d at 65; Broom v. MacMaster, 992 S.W.2d at 664; Lexington Ins. Co. v. Buckingham Gate, Ltd., Inc., 993 S.W.2d at 190. As a consequence, if an attorney immediately after filing suit seeks to have a defendant served, but fails after two attempts, and then does not try again to effectuate service for three months, the due diligence requirement will not be satisfied. Along those same lines, it is the responsibility of the party requesting service, as opposed to the process server, to ensure that service is properly effectuated. Taylor v. Thompson, 4 S.W.3d at 65; Jimenez v. County of Val Verde, 993 S.W.2d 167, 168 (Tex. App.--San Antonio 1999, pet. denied). Therefore, an attorney cannot hand the duty of service to the sheriff, fail to follow up on whether service was effectuated, and then seek to avoid a due diligence problem three months later by blaming the inaction of the sheriff. But see infra Edwards v. Kaye, 9 S.W.3d 310 (Tex. App.--Houston [14th Dist.] 1999, pet. filed) (holding that an attorney’s failure to follow up with process server for 12 weeks to determine whether defendant had been properly served did not constitute lack of due diligence as a matter of law).

   2. Application of the Rule:

      Whether a delay constitutes a lack of due diligence as a matter of law seems to rest with whether an explanation for the delay is advanced by the plaintiff. For example, an unexplained delay of six and one-half months in obtaining service is, as a matter of law, not due diligence. Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.--Houston [1st Dist.] 1992, no writ). Similarly, in Taylor v. Thompson, 4 S.W.3d at 65, an unexplained delay of more than four months was held to not constitute due diligence. See also Li v. University of Texas Health Science Center at Houston, 984 S.W.2d 647, 652, (Tex. App.--Houston [14th Dist.] 1998, pet. denied) (also holding that an unexplained lapse of four months did not constitute due diligence). Also, in Holt v. D’Hanis State Bank, 993 S.W.2d 237, 241 (Tex. App.--San Antonio 1999, no pet.), the court held that a three month delay in procuring service did not constitute due diligence as a matter of law because the plaintiff failed to give an explanation as to the reason for the delay. See also Eichel v. Ullah, 831 S.W.2d 42, 44 (Tex. App.--El Paso 1992, no writ) (holding that there was no due diligence where there was a two month delay between filing suit and the issuance of citation and a nine month period without any activity at all aimed at finding or serving defendant).

      Nevertheless, Texas courts have found a lack of due diligence even where an explanation was proffered. For example, in Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex. App.--Dallas 1999, no pet.), the court held the plaintiff failed to exercise diligence in procuring service where she attempted service more than three months after suit was filed and did not actually obtain service until more than four months had passed. In response to summary judgment motion, plaintiff’s counsel stated that the reason he withheld service was because there was still a question in his mind about whether the defendant was a proper party. Id. at 665. However, the court noted that the decision to make the hospital a defendant was made when the lawsuit was filed and thus the plaintiff had a duty to diligently attempt service to preclude the limitations bar. Id. To hold otherwise, the court stated, "would ignore the goal of statutes of limitations to inform defendants in a timely fashion of claims against them and would eviscerate the long established due diligence requirement." Id. at 664. Thus, the court held that while the plaintiff’s attorney offered an explanation as to why there was a delay in effectuating service, the explanation itself was not reasonable, thereby entitling the defendant to summary judgment.

      To the contrary, in cases where a reasonable explanation for the delay was proffered, Texas courts have held a fact issue to exist, thereby preventing summary judgment on the basis of limitations. For example, in Medina v. Lopez-Romano, 2000 WL 1755093, *6 (Tex. App.--Austin 2000, no pet. h.), the court held that whether a four-month delay in procuring service met the due diligence requirement was a fact issue where the plaintiff’s counsel came forth with evidence that the defendant frequently changed addresses throughout the four month period in question. Id. at * 6. Consequently, defendant’s motion for summary judgment premised on limitations was denied.

      Similarly in Edwards v. Kaye, 9 S.W.3d 310, 315 (Tex. App.--Houston [14th Dist.] 1999, pet. filed), the court held that an 84 day delay in service was insufficient to establish a lack of due diligence as a matter of law. In that case, the defendant’s only proof that plaintiff failed to use due diligence was a letter the defendant sent to the court in response to a motion to dismiss showing a 12 week lapse between the time plaintiff filed suit and the time he was notified no service was issued. Id. In response, plaintiff submitted an affidavit showing he was in trial in an out of town court for the relevant time frame and was unaware service had not been issued until he was notified by the trial court. The court noted that even had defendant met his burden of proof on the due diligence issue, the plaintiff came forward with proof sufficient to create a fact issue and prevent summary judgment. Id.

      Additionally, an explained four-month delay was found to meet the due diligence requirement in Witt v. Heaton, 10 S.W.3d 435 (Tex. App.--Beaumont 2000, no pet.). In that case, citation was requested on the date suit was filed, September 4, 1997. Id. at 437. The district clerk then mailed the citations to the officer, but said citations were later returned to counsel because the defendant resided outside the constable’s jurisdiction. Id. A letter dated December 30, 1997 was then sent to a constable in the proper area, new citations were issued and were subsequently sent to another constable. Id. Service was attempted multiple times by two officers from January 6^th to the 28^th, at which time defendant was ultimately served. Id. Despite the almost five month delay, the court noted that the only period of inactivity was from when the citations were requested until the error was discovered, which alone did not conclusively negate due diligence.² Id. at 438.

3. Misnomer v. Misidentification
   1. The Rule:

      Misnomer and misidentification are two distinct doctrines under Texas law. The rule of misnomer states that if a plaintiff simply misnames the correct defendant in his/her petition, the statute of limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition. Enserch Corp. v. Parker, 794 S.W.2d 2, 4 (Tex. 1990); Pierson v. SMS Financial II, L.L.C., 959 S.W.2d 343, 347 (Tex. App.-Texarkana 1998, no pet.). Misnomer can also occur when a party asserting the claim misnames itself. Pierson v. SMS Financial II, L.L.C., 959 S.W.2d at 347. The reason that the statute is tolled in the context of misnomer is because the entity that the plaintiff intended to sue has been served and put on notice that he is the intended defendant. Pierson v. SMS Financial II, L.L.C., 959 S.W.2d at 347. As a consequence, the intended defendant’s rights are not prejudiced.

      In contrast, the rule of misidentification states that if the plaintiff is mistaken as to which of two defendants is the correct one and there is actually an existing a corporation with the name of the erroneously named defendant, then the plaintiff has sued the wrong defendant and the statute of limitations is not tolled. Enserch Corp. v. Parker, 794 S.W.2d at 4. However, "in misidentification cases, limitations may be tolled when a plaintiff sues an incorrect entity if there are two separate but related entities that use a similar trade name and the correct entity had notice of the suit and was not misled or disadvantaged by the mistake." Johnson v. Burger King Corp., 2000 WL 1160490, *1 (Tex. App.—Beaumont 2000, pet. denied). This equitable exception provides that even assuming the wrong defendant is originally sued and the proper defendant is not named until after limitations has run, limitations will not bar suit against the proper defendant if said defendant is not prejudiced by the mistake in pleading and was not placed at a disadvantage in obtaining relevant evidence to defend the suit. See Enserch Corp. v. Parker, 794 S.W.2d at 4-5; Pierson v. SMS Financial II, L.L.C., 959 S.W.2d at 347; Hernandez v. Furr’s Supermarkets, Inc., 924 S.W.2d 193, 196 (Tex. App.--El Paso 1996, writ denied); Johnson v. Burger King Corp., 2000 WL at *1. Generally, the key issue in misidentification cases is whether the alleged responsible party was put on notice as to the claim being made against it. Ayala v. South West Properties, L.P., 2000 WL 1195700, *1 (Tex. App.--Dallas 2000. no pet. h.). Furthermore, for this narrow exception to apply, both corporate defendants must possess a business relationship that is "sufficiently intertwined," although there is no clear standard dictating what facts meet this requirement.³ Enserch Corp. v. Parker, 794 S.W.2d at 6;⁴ Ayala v. South West Properties, L.P., 2000 WL 1195700, *2 (Tex. App.—Dallas 2000, no pet. h.).

   2. Application of the Rule:
      1. Misnomer:

         In Pierson v. SMS Financial II, 959 S.W.2d 343 (Tex. App.—Texarkana 1998, no pet.), the plaintiff (SMS II) misnamed itself in the petition as SMS I, which was a separate limited liability corporation. The petition was later amended to properly name SMS II as the proper plaintiff, and in response, the defendant asserted the statute of limitations barred SMS II’s claims because the petition naming it as the proper plaintiff was not filed until after the statute of limitations had run. Furthermore, the defendant asserted the case to be one of misidentification rather than misnomer such that the date of filing did not relate back. However, the appellate court ultimately held that the plaintiff had merely misnamed itself, that the petition related back to the original date of filing and thus the claim was not barred by the statute of limitations.

      2. Misidentification & The Equitable Exception Thereto:

         In Enserch Corp. d/b/a Lone Star Gas v. Parker, 794 S.W.2d 2 (Tex. 1990), a wrongful death action was brought by the family of workers killed while servicing a pipeline. The decedents were employed by J.W. Christie, Inc., a company operated by Enserch Corp. through its division Lone Star Gas Company.⁵ Suit was initially filed on February 3, 1986 naming Lone Star Gas as a defendant. Subsequently, on August 5, 1987, plaintiffs amended their petition to include claims against Enserch Corp. d/b/a as Lone Star Gas Company. Enserch then argued that the claims asserted against it were barred by statute of limitations, to which the plaintiffs responded that the subsidiary originally served had a name deceptively similar to the trade name of the parent and that the parent had not been prejudiced by the plaintiff’s mistake.

         The Texas Supreme Court ultimately held that Enserch was not placed at a disadvantage in obtaining the relevant evidence to defend the action. Specifically, the court noted the following: (1) Lone Star’s legal department handled the utility litigation involving both Lone Star and Enserch; (2) the case was referred to the senior attorney in Enserch’s litigation department who handled litigation for both corporate entities; (3) a deposition revealed that Lone Star had previously been misnamed for Enserch in another lawsuit; (4) the necessary business relationship existed between the two parties; and (5) both entities were cognizant of the facts of the accident and could not have been misled as to the basis of the suit. Therefore, the Supreme Court held that a fact issue remained as to whether Enserch was actually prejudiced, thereby preventing summary judgment on limitations.

         Additionally, in Cortinas v. Wilson, 851 S.W.2d 324 (Tex. App.—Dallas 1993, no writ), a party injured in an automobile accident brought a personal injury lawsuit against the person she thought was the driver of the other vehicle. However, by mistake, the plaintiff sued the other driver’s mother instead. It was not until four months after the limitations period expired that the attorney discovered the mistake and amended the complaint to properly name the driver of the other vehicle. However, the defendant asserted the statute of limitations defense and filed a summary judgment motion thereon. The court ultimately held that because the plaintiff named, sued and served the wrong person (namely the mother of the driver), it constituted a misidentification rather than a misnomer case. Furthermore, the court held that this case fell outside the scope of the narrow "lack of prejudice" exception to the statute of limitations, which requires the defendants to have some sort of a business relationship. Consequently, the court refused to extend this exception to individual defendants.

         In Hernandez v. Furr’s Supermarkets, Inc., 924 S.W.2d 193 (Tex. App.—El Paso 1996, writ denied), the plaintiff fell at the Furr’s grocery store in El Paso. Subsequently, her attorney filed suit against "Rubus Realty Co., Inc. d/b/a Furr’s Food Stores." Rubus responded on January 4, 1995 with a Notice of Filing of Bankruptcy and stated therein that the particular store where plaintiff was injured had been sold to Furr’s Supermarkets, Inc. (FSI) in March of 1991. Consequently, that same day, which was after the limitations period ran, plaintiff amended her petition to name FSI as the proper defendant. FSI in turn filed a motion for summary judgment alleging the limitations defense. The court ultimately held that because the plaintiff sued and served an existing defendant that turned out to be the wrong defendant, Rule 28 cannot be employed to toll the statute of limitations. Nevertheless, the court held there to be a fact question as to whether a business relationship showing the two entities to be sufficiently intertwined existed such that the "lack of prejudice" exception could be applied. Specifically, the evidence before the court showed the following: (1) Rubus and FSI owned and operated the store in question under the same name; (2) Rubus and FSI have their common genesis in another corporation; (3) Rubus and FSI have the same registered agent; and (4) Rubus filed an assumed name certificate to do business as Furr’s four months before the accident and 17 months after it claims it sold Furr’s to FSI. Therefore, the court held that this fact issue prevented summary judgment on limitations.

         However, the mere existence of some sort of a "business relationship" between the two entities alone is not always enough. For example, in Johnson v. Burger King Corp., 2000 WL 1160490 (Tex. App.--Beaumont 2000, no pet. h.), the plaintiff was injured at a Burger King restaurant and thus sued Burger King Corporation in her original petition. Later, after the limitations period ran, she amended her petition to include the franchisee, National Restaurant Enterprises, Inc. d/b/a Ameriking Corp. (Ameriking). Subsequently, Ameriking filed a motion for summary judgment asserting the limitations defense, which the trial court granted. On appeal, the plaintiff asserted that a business relationship existed between the two entities such that the statute of limitations was tolled. The appellate court noted that the critical issue in this case was whether the party claimed to be responsible actually had notice of the claim against it. Because there was no evidence that Ameriking ever received actual notice of the existence of the suit within the limitations period, the court held filing suit against Burger King Corp. was not sufficient to toll the statute of limitations against Ameriking, thereby barring the plaintiffs claims against the same.

4. The Discovery Rule:
   1. The Rule:

      A cause of action generally accrues when a wrongful act causes an injury, regardless of when the plaintiff learns of the injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). The discovery rule, a narrow exception to the general rule of accrual, is a judicially constructed test that is used to determine when a plaintiff’s cause of action accrued. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990); Palmer v. Sears, Roebuck & Co., 969 S.W.2d 582, 584 (Tex. App.--Fort Worth 1998, no pet.).; Cox v. Upjohn Co., 913 S.W.2d 225, 229 (Tex. App.--Dallas, no writ). For the discovery rule to apply, it must first be proved that the nature of the injury that was incurred is "inherently undiscoverable" and the evidence of the injury is "objectively verifiable." S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996); Savage v. Psychiatric Institute of Bedford, 965 S.W.2d 745, 750 (Tex. App.--Fort Worth 1998, pet. denied).

      With regard to the first element, an injury need not be absolutely impossible to discover for it to be "inherently undiscoverable," nor is it sufficient to simply prove that the particular plaintiff did not discover his injury within the prescribed period of limitations. S.V. v. R.V., 933 S.W.2d at 7; Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716, 720 (Tex. App.—San Antonio 1998, pet. denied). Rather, to be "inherently undiscoverable" the injury must be of the type that is by nature unlikely to be discovered within the prescribed limitations period despite due diligence. S.V. v. R.V., 933 S.W.2d at 7; Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716 at 720. In applying the foregoing element, it has been held that and injury is not "inherently undiscoverable" in situations where the traumatic or injurious event causing personal injury is sudden and distinguishable, and the plaintiff knows that injury occurred at the time the event occurred, even if the plaintiff did not know the full extent of injury until much later." Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716 at 720 (citing S.V v. R.V., 933 S.W.2d at 4). Thus in this type of case, when an injury, though slight, is sustained as a consequence of a wrongful act of another, the cause of action accrues and the statute of limitations begins to run immediately. Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716 at 720.

      With regard to the second element, an injury is "objectively verifiable" if the presence of injury and the producing wrongful act cannot be disputed. Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716 at 720. In other words, this element is met if the plaintiff can demonstrate direct, physical evidence of the injury and/or its causation. Steel v. Rhone Poulenc, Inc., 962 S.W.2d 613, 618 (Tex. App.--Houston [1st Dist.] 1997, aff’d 997 S.W.2d 217 (Tex. 1999)). For example, evidence such as studies linking exposure to hazardous chemicals to a certain disease provides the objective evidence to satisfy this element. Steel v. Rhone Poulenc, Inc., 962 S.W.2d at 619.

      Due to the high burden of proof our Supreme Court has set on this issue, historically, the discovery rule has been applied to very few categories of cases in Texas. Specifically, the discovery rule has primarily been found to apply in cases involving latent diseases (e.g. those resulting from chemical, asbestos and silicosis exposure as well as the transmission of HIV). In contrast, injuries resulting from some sort of distinct event such as an auto accident, a plant explosion or a slip and fall have routinely been found not to qualify as "inherently undiscoverable," thereby preventing the application of the discovery rule. As a consequence, the majority of the case law in Texas that addresses the application of the discovery rule is limited to latent disease fact scenarios, which might lead one to conclude that the law would be relatively clear in this area. However, because the facts themselves can differ so greatly from case to case and because how the law regarding the application of the discovery rule is applied to the facts can differ from court to court, the holdings of the cases relating to the discovery rule are not always consistent and sometimes cannot be reconciled as exemplified infra in section IV(D).

   2. Burden of Proof on Summary Judgment and at Trial:

      If a defendant files a motion for summary judgment premised on the defense of limitations, the defendant has the burden of showing as a matter of law that the claim is time-barred. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d at 719. If the plaintiff then pleads the discovery rule in order to avoid the limitations bar, the burden also falls on the defendant to prove both when the cause of action accrued⁶ and to negate the discovery rule as a matter of law.⁷ Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d at 719; see J.K. & Susie L. Wadley Research Institute & Blood Bank v. Beeson, 835 S.W.2d 689, 694 (Tex. App.--Dallas 1992, writ denied). However, once the discovery rule is determined to apply, when a plaintiff discovered or should have discovered the injury is a question of fact for the jury. Vasecky v. Vesecky, 880 S.W.2d 804, 806 (Tex. App.--Dallas 1994, rev’d on other grounds, 933 S.W.2d 1 (Tex. 1996)). Furthermore, if summary judgment is denied and a trial on the merits is reached, the burden of proving the applicability of the discovery rule shifts to the party seeking the benefit of the discovery rule, namely the plaintiff. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d at 223.

   3. Application of the Discovery Rule - Knowledge of Injury vs. Causation:

      It is well settled that once the discovery rule is held to apply, the rule operates to toll the running of the period of limitations until the time that the plaintiff discovers, or through the exercise of reasonable care and diligence should discover, the nature of his/her injury.⁸ Childs v. Haussecker, 974 S.W.2d at 37; Moreno v. Sterling Drug, Inc., 787 S.W.2d at 351; Palmer v. Sears, Roebuck & Co., 969 S.W.2d at 584; Grace v. Colorito, 4 S.W.3d 765, 770 (Tex. App.--Austin 1999, pet. denied). Knowledge of facts that would cause a reasonably prudent person to make an inquiry that would lead to the discovery of the injury is equivalent to knowledge of the cause of action for limitations purposes. Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 436 (Tex. App.--Fort Worth 1997, pet. denied); L.C. v. A.D., 971 S.W.2d 512, 515 (Tex. App.--Dallas 1997, pet. denied). In other words, an awareness of critical facts imposes a duty upon a plaintiff to use due diligence to investigate and confirm or deny his/her belief. Billman v. Missouri Pacific Railroad Co., 825 S.W.2d 525, 527 (Tex. App.--Fort Worth 1992, writ denied); L.C. v. A.D., 971 S.W.2d at 515. Thus the question becomes, when did the plaintiff have knowledge sufficient to cause his/her cause of action to accrue and to begin the limitations period? One of the debates which stems from this question is whether knowledge of the injury alone starts the clock running or whether the plaintiff must also have some knowledge linking the injury to a specific cause or event.

      In evaluating the case law in Texas, it appears that in the context of latent injury/toxic tort cases, the primary category of cases to which the discovery rule generally applies,⁹ a person’s knowledge that he/she has symptoms of a disease is not sufficient to cause a cause of action to accrue. In fact, the Texas Supreme Court has held that because discovering the nature of the injury requires knowledge not only of the wrongful act, but also the resulting injury, in latent occupation disease cases, accrual of a cause of action is delayed 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 likely work-related." Childs v. Haussecker, 974 S.W.2d at 40; Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217 (Tex. 1999); see Pustejovsky v. Rapid-American Corp., 2000 WL 1753648, *10 (Tex. 2000). In other words, the Childs court held that the accrual of a cause of action will be deferred until a reasonably diligent plaintiff uncovers some evidence of a causal connection between the injury and the plaintiff’s occupation. Id. at 41. The mere suspicion or subjective belief that a causal relationship exists is alone insufficient to establish accrual of the cause of action as a matter of law. Childs v. Haussecker, 974 S.W.2d at 42. Nevertheless, the seriousness of the injury need not be fully apparent or even fully developed in order to commence the running of the statute of limitations, nor must there be a confirmed medical diagnosis. Childs v. Haussecker, 974 S.W.2d at 41 & 42; see e.g. Bell v. Shoa Denko K.K., 899 S.W.2d 749, 755 (Tex. App.--Amarillo 1995, writ denied) (holding that the plaintiff was aware of her injuries before she received a firm medical diagnosis).

      Missing from this analysis is a discussion of reported cases in which a reviewing court evaluates the factual/legal sufficiency of a jury’s answer to a due diligence or discovery rule question. Indeed, the 1998 Texas Pattern Jury Charge volumes for negligence, premises and products do not have a suggested question or instruction for a limitations defense. Consequently, the case law is limited to situations which summary judgment either does or does not lie.

   4. Applicability of the Discovery Rule in Personal Injury Cases:¹⁰

      This section contains several personal injury case summaries showing how the discovery rule has been applied (or rejected, as the case may be) by Texas Courts in various contexts. Keep in mind when reading these cases that although the courts to date may rule one way as to the application of the discovery rule to a certain category of cases, a slightly different fact pattern may effectuate an entirely different result. In other words, simply because the discovery rule has not been applied to a certain category of cases does not necessarily mean it will never be held to be applicable under different facts. Furthermore, note that holdings in some of the following cases appear to be inconsistent with other cases, making the rules regarding the application of the discovery rule somewhat unclear. Nevertheless, these cases are helpful in determining how the discovery rule has been and potentially will be applied and assisting attorneys in evaluating the type of evidence that will either warrant or prohibit summary judgment on the basis of limitations.

      1. Sexual Abuse – Discovery Rule Inapplicable:

         In S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996), the plaintiff intervened in her parents’ divorce proceeding asserting that her father sexually abused her and that she unconsciously repressed all memory of the abuse for years. Because her intervention was filed long after the abuse began, the plaintiff asserted the application of the discovery rule in determining when her cause of action accrued. In evaluating the facts under the laws of this state, the Texas Supreme Court assumed without deciding that the "inherently undiscoverable" element had been satisfied and thereby focused on the second element of "objective verifiability." The question then became whether there can be enough objective verification of wrong and injury in childhood sexual abuse cases to warrant application of the discovery rule.

         The court noted that the only physical evidence to support plaintiff’s claims were her symptoms and the extent of her behavioral traits as described by her and her expert witnesses. In every instance, the court held, the evidence was inconclusive and even the experts testified that the plaintiff’s symptoms could have been caused by something other than the sexual abuse of her father. Additionally, tests on her father were also inconclusive. Accordingly, the court ultimately held that expert opinions regarding recovered memories of childhood sexual abuse cannot meet the objective verifiability element for extending the discovery rule in childhood sexual abuses. The reason for this conclusion was that there is no accepted verifiable way to determine the reliability and viability of repressed memories. In other words, experts cannot conclusively rule out that memories are either false, but unintentional, or fabricated.¹¹ Therefore, because the second prong of the discovery rule test could not be satisfied, the court held the discovery rule to not apply, thereby rendering plaintiff’s claims time-barred.¹²

         Additionally, in Marshall v. First Baptist Church of Houston, 949 S.W.2d 504 (Tex. App.--Houston [14th Dist.] 1997, no writ), the plaintiff alleged that in 1984 when he was 12 years old he was sexually molested by the church’s director of children’s music. Between 1987 and 1988, the plaintiff told several individuals at the church what had happened, all of which failed to even report the incident. In 1990, Plaintiff began having severe psychological problems and was ultimately diagnosed with multiple personality disorder and post traumatic stress disorder. Consequently, on January 6, 1994, plaintiff sued the church not only for the sexual assault committed by its minister, but also for the church officials’ rejection of the plaintiff’s allegations several years before. The church in turn filed a summary judgment motion based on limitations which was ultimately granted. (Note the statute of limitations began to run on November 3, 1989 when the plaintiff reached the age of majority unless the discovery rule applied).

         Plaintiff alleged on appeal that the discovery rule should apply because as late as July 1992, he was not aware that his problems were related to actions of the ministers who failed to report his claims of abuse. The plaintiff further argued to the court that for an injury to be "inherently undiscoverable" he not only had to know that a wrongful act occurred, but also that the injury was caused by the misconduct. However, the appellate court noted that the plaintiff was acutely aware of the sexual molestation as well as the ministers’ failure to report the incident long before he filed suit. Furthermore, the court stated that "whether or not [the plaintiff] made the ‘complicated connection between the Church’s conduct and his psychological condition’ is of no moment because neither the wrongful acts nor the injuries asserted in this case are inherently undiscoverable." Id. at 507. Therefore, the court declined to extend the discovery rule to cases where the plaintiff is fully aware of the wrongful act and his injury, but fails to make the causal connection between the two.

      2. Roller Coaster Accident – Discovery Rule Inapplicable:

         In Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716 (Tex. App.—San Antonio 1998, pet. denied), an amusement park visitor and his family filed suit against the park owner as well as other parties for personal injuries he allegedly sustained on one of the rides on May 17, 1992. During the ride, the plaintiff allegedly experienced pain, but the plaintiff simply associated his pain with previous injuries he had sustained unrelated to roller coasters. Despite a doctor’s subsequent diagnosis of disc herniations and other continued problems, the plaintiff still attributed the symptoms to prior injuries. It was not until after the statute of limitations ran in July of 1995 and additional injuries had been discovered that the plaintiff attributed his injuries to his ride at the park. Consequently, plaintiff did not file suit until December 19, 1996 (over four years after the roller coaster ride) and as a result, summary judgment premised on limitations was granted despite plaintiff’s assertion of the discovery rule.

         The appellate court, in affirming the trial court’s decision, noted that the plaintiff admitted that on May 22, 1992 (5 days after the ride) that he had been diagnosed with a herniated disc for which he sought treatment soon after. As a result, he was injured during a distinct, discernable event, thereby causing his cause of action to accrue at that time despite his purported lack of knowledge as to the extent of his injuries. Accordingly, the court affirmed the inapplicability of the discovery rule to this factual scenario.

      3. Automobile Accident – Discovery Rule Inapplicable:

         In Honea v. Morgan, 997 S.W.2d 705 (Tex. App.—Eastland 1999, no writ), the plaintiff driver of a car brought suit against the owner/driver of another truck for injuries sustained in a collision. Although the accident occurred on October 3, 1995 and the plaintiff saw a doctor for her injuries in December of 1995, at which time she learned of their connection to her accident, she did not file suit against the defendant until October 20, 1997, more than two years after the accident. As a consequence, summary judgment on limitations was entered against the plaintiff by the trial court.

         On appeal, the plaintiff asserted the application of the discovery rule because she did not identify her injuries until she saw the doctor on December 1, 1995. However, because the plaintiff knew of the injury-causing event and determined the extent of her injuries within the two-year statute of limitations period, the court held her injury was not "inherently undiscoverable" thereby preventing the application of the discovery rule.

      4. Auto Accident/Products Liability – Discovery Rule Inapplicable:

         In Stewart v. Stanley Bryan Oldsmobile-Buick-Pontiac-GMC, Inc., 883 S.W.2d 273 (Tex. App.--Corpus Christi 1994, writ denied), a motorist was injured in a collision on June 26, 1987. It was not until February of 1989 that she discovered another injury caused or enhanced by an allegedly defective seat belt in her vehicle. Consequently, plaintiff filed suit on January 22, 1991 against the manufacturer and seller of her vehicle (more than two years after the accident) which resulted in a summary judgment premised on limitations in favor of the defendant.

         On appeal, the plaintiff asserted the application of the discovery rule because she did not discover her additional injury was caused or enhanced by the seat belt until a year and a half after the accident. However, the court ruled that the discovery rule was inapplicable because she was aware of the sudden and dramatic collision and knew immediately she had been injured, although she did not know the full extent of her injuries. Therefore, the severity of her injuries was not "inherently undiscoverable.¹³

      5. Auto Accident/Dram Shop Liability – Discovery Rule Inapplicable:

         In Riojas v. Phillips Properties, Inc., 828 S.W.2d 18 (Tex. App.—Corpus Christi 1991, writ denied), the plaintiffs’ car was struck by a vehicle operated by a driver who was under the influence of alcohol. Suit was filed prior to limitations. However, more than two years after the accident, plaintiffs (the driver and passenger) deposed the allegedly intoxicated driver and determined that he had obtained the alcohol on the day in question from a store called "The Drive Thru" owned by Phillips, and therefore, the plaintiffs subsequently sued this party under a dram-shop theory. Phillips then filed a motion for summary judgment on limitations, which was granted with regard to the passenger plaintiff’s claims.¹⁴

         On appeal, the passenger plaintiff asserted the application of the discovery rule by arguing that she did not know that the acts of Phillips caused or contributed to cause the accident until she deposed the defendant. However, the court disagreed and held that because she knew on the date of the collision that she had been injured, the statute of limitations began to run at that time, and the fact that she did not know Phillips may have contributed to the cause of the accident until a later date was of no relevance. Therefore, the court held that the discovery rule was inapplicable and the passenger plaintiff’s claims against Phillips were time-barred.

      6. Work Related Hearing Loss - Discovery Rule Inapplicable:

         In Billman v. Missouri Pacific Railroad Co., 825 S.W.2d 525 (Tex. App.—Fort Worth 1992, writ denied), the plaintiff worked for the railroad defendant beginning in 1974. Between 1974 and 1980, the plaintiff was exposed to extreme noise at the railroad track causing him to suffer temporary pain and ringing in his ears. Even after he changed positions, the plaintiff continued to experience hearing problems. Finally his hearing worsened from 1988 until 1990, at which time he filed suit under FELA against his employer. In response to this lawsuit, his employer filed an answer and ultimately a summary judgment motion asserting the limitations defense. Although the plaintiff asserted the application of the discovery rule and argued that he did not know his hearing loss was permanent until within three years prior to his lawsuit, thereby tolling the limitations period, the court held that the statute of limitations began to run several years before his lawsuit was filed. Specifically, the court noted that the evidence conclusively proved he knew he had suffered a job-related hearing loss more than three years before suing his employer. Therefore, because the discovery rule was inapplicable, plaintiff’s claims were held to be time-barred.

      7. Transmission of HIV: – Discovery Rule Applicable:

         In J.K. & Susie L. Wadley Research Institute & Blood Bank v. Beeson, 835 S.W.2d 689 (Tex. App.--Dallas 1992, writ denied) the decedent received a blood transfusion during surgery on April 22, 1983. He was later hospitalized in June of 1987 for pulmonary problems and was tested for AIDS. The Plaintiff learned he was HIV positive on June 9, 1987 and died almost a month later.

         The plaintiff’s family subsequently brought a wrongful death and survival action as well as a negligence action against the blood bank from which the blood was received. The defendant asserted that the negligence claim was barred by the two-year statute of limitations and in response, the plaintiffs asserted the applicability of the discovery rule. The court, in holding that the discovery rule tolled the statute of limitations, noted that neither the decedent nor his family knew or could have known at the time of the transfusion that he had contracted HIV due to the fact that a test was not yet available, the decedent would not have immediately shown symptoms and the long latency period of the disease. Furthermore, the court stated that the general knowledge that the decedent could have contracted HIV from a blood transfusion, without more, amounted only to a scintilla of evidence. Consequently, the court held that the limitations period was tolled pursuant to the discovery rule until, at the earliest, when the nature of his illness discovered in May of 1987, and possibly not until the HIV test in June.

         Additionally, the El Paso Court of Appeals has taken the foregoing application of the discovery rule a step further and held in Casarez v. NME Hospitals, Inc., 883 S.W.2d 360 (Tex. App.—El Paso 1994, writ dism’d by agr.) that although a nurse, who contracted AIDS when a known AIDS patient involuntarily vomited blood on him, suspected exposure to the disease on the date of the incident, he could not know with certainty that he had contracted the virus until he received his HIV test results. As a result, the court held that a fact issue was created as to when he had knowledge of his injury, thereby preventing summary judgment on limitations.

      8. Toxic Torts/Latent Diseases – Discovery Rule Generally Applicable:

         In Steel v. Rhone Poulenc, Inc., 962 S.W.2d 613 (Tex. App.—Houston [1st Dist.] 1997, aff’d 997 S.W.2d 217 (Tex. 1999)), the Texas Supreme Court addressed the application of the discovery rule to a chemical exposure case resulting in cancer. In that case, the surviving wife of a deceased employee sued the employer for the wrongful death of her employee husband and their son alleging that workplace exposure to chemicals caused her husband’s malignant brain tumor and the residue on his clothing caused her son’s leukemia. The husband worked for his employer from 1986 to 1990 and was diagnosed with a brain tumor on October 6, 1989. Suit was filed by the husband on September 21, 1992. In response, the employer filed a motion for summary judgment based on limitations, which was ultimately granted by the trial court. The husband ultimately died from his cancer.

         On appeal, the plaintiff wife asserted the discovery rule and argued that although her husband was diagnosed with cancer in October of 1989, it was not until she read an article in March of 1990 about the link between hazardous chemicals and cancer that she knew her husband’s cancer was work-related. The appellate court noted that unlike asbestosis or silicosis, the diagnosis of cancer is not always linked to an occupational hazard. Furthermore, although the employer was charged with the duty to negate the discovery rule to effectuate summary judgment, it failed to come forth with any evidence showing what methods of discovery were available to the husband such that through due diligence he could have been alerted to the fact that working with chemicals could cause cancer. The court held that the discovery of a malignant brain tumor does not equate to discovery of an actionable injury or of a negligent act or omission. In other words, for the limitations clock to start running, the plaintiff had to have some knowledge as to the causal connection between his cancer and his work-related exposure to chemicals. As a consequence, the appellate court reversed and held that the injury sustained by the husband was "inherently undiscoverable" thereby making the discovery rule applicable. The court further held because the employer came forth with no evidence to negate the husband’s evidence as to when he discovered the link between his illness and his cancer, i.e. when she read the article about the causal connection in March of 1990, a material fact issue was created on this matter that should be submitted to the jury.

         In Nugent v. Pilgrim’s Pride Corp., 30 S.W.3d 562 (Tex. App.—Texarkana 2000, pet. filed), the Texarkana Court of Appeals discussed the applicability of the discovery rule to a non-work related exposure case. In that case, the owners of a farm filed suit against the corporate owners of the adjoining farm for personal injuries and property damage resulting from the company’s dumping of hazardous waste during the operation of the company’s feed mill. Specifically, the company disposed of large amounts of chicken litter and hatchery waste on its farm and dumped various materials on a hillside just above the creek. As a result of heavy rain, the waste washed down the hill, into the creek and onto the plaintiff’s bottomland pasture, which resulted in the death of some of the plaintiffs’ cattle. The plaintiffs became so alarmed that they had their soil tested in 1991, which tests showed an elevated amount of arsenic and selenium, both found in the waste from chicken production. Also, in 1992, the plaintiffs witnessed the dumping of a substance on the hill which ultimately showed high concentrations of toxic chemicals. Again, during heavy rains, these chemicals washed down the creek and onto the plaintiff’s land.

         In 1994, the plaintiff wife was diagnosed with skin cancer, which her physician did not initially relate to her exposure to arsenic and the other contaminants. It was not until three years later that her doctor informed her of the probable connection. Sometime after 1994, she and her husband were also diagnosed with CIDP, which the doctor also ultimately attributed to their exposure. The plaintiffs finally filed suit for their personal injuries and property damage on August 30, 1994 (three years after the initial soil sample) and invoked the discovery rule.

         The defendants argued on summary judgment that the plaintiffs’ claims were time-barred because they knew that their land had been contaminated in 1991 when they had the tests performed. However, the court ultimately held that the plaintiffs were not aware of any of their contamination-related illnesses before 1994, at which time they filed suit. In other words, the knowledge that their soil had been contaminated was not enough to trigger the statute of limitations as to their later-discovered personal injury claims, although it is not apparent from this opinion as to whether knowledge of their injuries was enough to start the limitations clock running or whether evidence of the causal relationship also had to be present. Nevertheless, the appellate court held that the discovery rule applied and their personal injury claims were not time-barred.

         In contrast, in Palmer v. Sears, Roebuck & Co., 969 S.W.2d 582 (Tex. App.—Fort Worth 1998, no pet.), the plaintiff hired Sears to perform repairs on his air conditioner in April of 1993. Approximately a month later, the plaintiff noticed a leak causing water to accumulate in the return box. Sears made additional repairs on several occasions, but the problem was not corrected. The plaintiff became ill in October of 1994 and began treatment for environmental illness on November 8, 1994. A few weeks later, it was determined that mold and sporing from the air conditioner leak caused the plaintiff’s injuries. However, plaintiff did not file suit until September 27, 1996, (more than two years after his discovery of the leak, but less than two years after the diagnosis of his illness) to which Sears filed a response asserting limitations. The trial court granted Sears’ motion.

         On appeal, the plaintiff argued the discovery rule and stated that he could not discern his injuries until October of 1994. However, the court, in upholding the defendant’s summary judgment, asserted that the plaintiff first knew of his injuries in the spring of 1993 when he discovered the leak more than three years before he filed suit. In other words, the plaintiff’s legal rights had been invaded as soon as the water began leaking from his air conditioner. Therefore, the court held the discovery rule was inapplicable and the plaintiff’s claims were time-barred.

         It is important to note that the holding in Palmer is inconsistent with the holding in Nugent as well as the more recent asbestos/silicosis-related cases as the Palmer court seems to completely disregard whether the plaintiff had actual knowledge of his injuries or of the cause of his injuries, and instead treats this case much like an auto-accident case in stating that knowledge of the leak (or the injury causing event) started the statute of limitations running. Furthermore, the court implicitly focuses on the single action rule¹⁵ and relies on asbestos-related case law applying the same that has now been overruled by the holding in the recent case of Pustejovsky v. Rapid-American Corp., 2000 WL 1753648 (Tex. 2000) discussed later in this paper. The problem with either of these approaches is that when applied to these facts, the statute of limitations in this case begins to run more than a year before the plaintiff ever became ill because the triggering event is not the plaintiff’s symptoms of illness, but rather the original injury to his house caused by Sears. Therefore, in light of the other cases discussed in this section, the Palmer court’s decision with regard to the applicability of the discovery rule in this case may not be the right one.

         Roberts v. Lain, 32 S.W.3d 264 (Tex. App.—San Antonio 2000, no pet. h.) addresses the applicability of the discovery rule in a case involving chemical exposure-induced mental injuries. Specifically, in that case, the plaintiff worked for Southern Pacific between 1971 and 1992 and was exposed to various chemicals used as cleaning solvents. Initially, the plaintiff experienced adverse physical reactions (e.g. rashes, dizziness, metallic taste in his mouth, burning eyes, shortness of breath, etc.) for which he never sought treatment. When plaintiff was transferred to another office in 1985, he began to experience difficulty with his supervisor. In September of 1990, he also began to suffer weight loss, severe headaches, nausea, anxiety, memory loss and other emotional problems for which he sought treatment. His first doctor attributed these symptoms to the hostile work environment within which he worked. However, by 1992, the plaintiff began to wonder if his symptoms were related to his exposure to chemicals. That same year, the plaintiff suffered a steep decline in his mental health, had a nervous breakdown, was hospitalized for suicidal urges and thus began significant psychiatric treatment. As a result of the foregoing, the plaintiff filed suit against his employer under FELA for intentional infliction of emotional distress caused by his supervisor. Later, in 1997, he amended his petition to assert negligent exposure to toxic chemicals. In response, the defendant filed a motion for summary judgment on limitations, which was ultimately granted by the trial court.

         Plaintiff asserted on appeal that the discovery rule applied to toll the statute of limitations because it was not until 1997 when his treating physician made the causal link between the chemicals and his symptoms that he realized his mental health injuries were caused by his exposure to toxic chemicals at the work place. However, the court stated that the plaintiff experienced adverse reactions to the chemicals during his daily use of them back in the 1970’s, which was enough to put him on notice that he had sustained an actionable injury. Furthermore, even assuming his cause of action did not accrue in the 1970’s, the court noted that the plaintiff began to associate his symptoms with his exposure to toxic chemicals in 1992 and yet did not file suit on this claim until 1997. Therefore, the plaintiff’s claim for negligent exposure to toxic chemicals was held to be time-barred.

         To the extent this court indicates the plaintiff’s cause of action accrued in the 1970’s when he first had a physical (although not mental) reaction to the chemicals, this case, like Palmer, is inconsistent with some of the more recent case law on the application of the discovery rule as well as the single action rule in latent injury cases. In fact, the holding of this court is based on the San Antonio Court of Appeals holding in Pustejovsky v. Pittsburgh Corning Corp., 980 S.W.2d 828 (Tex. App.—San Antonio 1998) which was subsequently reversed by the Texas Supreme Court in Pustejovsky v. Rapid-American Corp., 2000 WL 1753648 (Tex. 2000). Furthermore, to the extent this court indicates the plaintiff’s cause of action accrued in 1992 when he began to suspect his injuries were work-related, this holding also conflicts with the rule set forth by the Texas Supreme Court that the mere suspicion or subjective belief that a causal relationship exists is alone insufficient to establish accrual of the cause of action as a matter of law. See Childs v. Haussecker, 974 S.W.2d at 42. Although the court notes that the plaintiff’s suspicions in combination with his later physical reaction to the chemicals was sufficient to put him on notice that his cause of action accrued, again, the issue of whether plaintiff had actual evidence of causation is ignored.

         Next, the Texas Supreme Court in Childs v. Haussecker, 974 S.W.2d 31 (Tex. 1998) addressed two cases that were consolidated for purposes of appeal that related to the application of the discovery rule in the work-related exposure/latent disease context.¹⁶ The abbreviated facts of the first case (Haussecker), a legal malpractice case with underlying toxic tort claims, are as follows: The plaintiff worked as a sandblaster for his employer in September 1961. He was later transferred to the pipe pickling operation because he complained that he was spitting up blood, although he later went back to sandblasting, coating and loading. In September 1967, he began to experience respiratory problems. Although he saw a doctor, he was simply given a prescription and failed to return for a follow-up. In December of that same year, he saw another doctor who told him that something was seriously wrong with him, but failed to give him specific information about his problem. Nevertheless, plaintiff failed to return to this doctor for a follow-up as well. However, in 1968, the plaintiff was told that his problems were related to his prostate gland and was later diagnosed with lymphoma. Although a lung specialist subsequently performed a biopsy and diagnosed him with granuloma of the lung, he told the plaintiff this problem was not work-related. Despite this doctor’s contentions, plaintiff began to become suspicious that he may suffer from silicosis based on the fact that a co-worker died of silicosis and suffered similar symptoms. Therefore, in November of 1968, the plaintiff sued his employer’s workers compensation carrier for severe damage to his lungs, but the case was ultimately dismissed because the plaintiff could not find any evidence connecting his problems with his work.

         Subsequently, twenty years later in May of 1988, a doctor finally diagnosed the plaintiff with silicosis. However, when the plaintiff consulted with an attorney about filing suit, he was told his claim accrued twenty years before when he originally filed his workers’ compensation claim. As such, suit was not then filed. Although another attorney ultimately took plaintiff’s case in 1992, he did not file suit until 1993 and thus a summary judgment motion was granted in favor of defendants on limitations. Therefore, the plaintiff sued the attorney that advised him his claim was time-barred for malpractice.

         On appeal, the defense attorney in plaintiff’s subsequent malpractice action asserted that because his client correctly told the plaintiff in April of 1990 that his claim was barred by the statute of limitations, he was not liable for malpractice. As such, the relevant question before the court was whether prior to April 1988, the plaintiff knew or should have known in the exercise of reasonable diligence that he likely suffered from an occupational illness. The court ultimately held that a fact question existed not only about the knowledge attributable to the plaintiff as of April 1988, but also about whether plaintiff reasonably abandoned his suspicions that his respiratory problems were work related. Therefore, the court held the attorney in the malpractice action was not entitled to summary judgment on the basis that he correctly told the plaintiff his toxic tort claim was time-barred.

         Similarly, the facts of the second case (Martinez) are as follows: The plaintiff worked as a sandblaster from 1978 to 1986 for two different companies. In September of 1989, he filed a worker’s compensation claim for lung disease arising from employment and filled out a claim form stating that his disease manifested itself on August 31, 1989 (although the plaintiff later stated at deposition he filed the claim as a precautionary measure because he was experiencing minor breathing problems). Because plaintiff’s symptoms worsened, he saw a doctor in 1990 who in turn told him something was wrong and that he needed a biopsy. The biopsy took place on September 23, 1991 and the plaintiff was officially diagnosed with silicosis on October 7, 1991. As a result, plaintiff filed suit against various manufacturers for products liability, although summary judgment was granted against him based on limitations.

         The Texas Supreme Court on appeal stated that "although the record reveals that Martinez [the plaintiff] failed to exercise reasonable diligence once he was apprised of facts that would incite a reasonably diligent person to seek information about his or her injuries and their likely causes, his claim is not time-barred as a matter of law" because the defendant failed to offer evidence that a diligent investigation by the plaintiff would have led him to discover before August 13, 1990 that he suffered from an occupational illness. Id. at 47. Therefore, the court held there to be a fact issue preventing summary judgment on the issue of limitations.

         Finally, in the recent Texas Supreme Court decision of Pustejovsky v. Rapid-American Corp., 2000 WL 1753648 (Tex. 2000), the Court addressed the issue of when a cause of action accrues with regard to separate asbestos-related diseases. In that case, the plaintiff was exposed to asbestos between 1954 and 1979 while working for Alcoa Aluminum. He learned that asbestos could be harmful in 1982, was subsequently diagnosed with asbestos and that same year sued Johns-Manville Corp. for damages related to his exposure. His lawsuit was ultimately settled.

         Twelve years later in 1994, the plaintiff experienced additionally symptoms and was diagnosed with mesothelioma, an asbestos-related cancer. Therefore, he and three other plaintiffs sued additional defendants for their asbestos-related injuries and asserted the application of the discovery rule. According to plaintiffs’ experts, mesothelioma and asbestos are two distinct diseases with different latency periods. Although both are related to exposure to asbestos, mesothelioma is not dependent on a precondition of asbestosis and vice verse. Furthermore, only 15% of people with asbestosis will develop mesothelioma. Therefore, plaintiffs argued, that awareness of asbestosis did not start the limitations clock running for the undiagnosed disease of mesothelioma. In contrast, the defendants argued that the limitations period began to run in 1982 when the plaintiff was diagnosed with asbestosis based on the application of the single-action rule.¹⁷ Although the trial and appellate courts agreed that summary judgment based on limitations was proper, the Texas Supreme Court reversed.

         The Texas Supreme Court noted that under Texas law, a plaintiff "may recover damages for a disease that may develop in future years only if the plaintiff establishes there is a reasonable medical probability the disease will appear. . . Courts have interpreted this test to mean that the plaintiff must demonstrate a greater than fifty percent chance of incurring the future damages." Id. at *8. However, because there is little or no way to predict whether a person diagnosed with asbestos will develop mesothelioma, a plaintiff generally cannot meet this burden. Therefore, if the single action rule applies and a person is diagnosed only with asbestosis, he/she likely cannot at that time sue for future disease and yet unless he/she is diagnosed with mesothelioma soon thereafter, limitations will run on such a claim. Therefore, the court held the following:

         "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. The diagnosis of a malignant asbestos-related condition creates a new cause of action, and the statute of limitations governing the malignant asbestos-related condition 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 with reasonable diligence should know, that the malignant asbestos-related conditions is likely work-related."

         Note, however, the court limited this holding to asbestos-related diseases resulting from workplace exposure.

      9. Wrongful Death:

         Texas case law holds that the discovery rule is inapplicable to a wrongful death cause of action. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351-52 (Tex. 1990); Sosa v. Central Power & Light Co., 901 S.W.2d 562, 565 (Tex. App.—San Antonio 1995). Specifically, unlike § 16.003(a) of the Tex. Civ. Prac. & Rem. Code which does not designate when a personal injury cause of action accrues, § 16.003(b) expressly states that a wrongful death cause of action accrues at the time of death. As a consequence, the Texas Supreme Court in Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 354 (Tex. 1990) held that "the language used in section 16.003(b) reflects a clear legislative intent to adopt an absolute two-year limitations period for wrongful death actions . . . By specifying the date [a wrongful death cause of action accrues], the legislature has foreclosed judicial application of the discovery rule."

         Despite the foregoing rule, it is important to note that it has been held that although the discovery rule may not apply in wrongful death cases, the doctrine of fraudulent concealment likely does apply. See Cox v. Upjohn Co., 913 S.W.2d 225, 231 (Tex. App.—Dallas 1995, no writ). The doctrine of fraudulent concealment is premised on the doctrine of equitable estoppel in that it estops a defendant from relying on the statute of limitations as an affirmative defense to the plaintiff’s claim where the defendant fraudulently conceals the tort from the plaintiff so the plaintiff cannot discover his/her cause of action. Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex. App.—Fort Worth 1997, pet. denied). In order to prevail on an assertion of fraudulent concealment, a plaintiff must prove the following essential elements: (1) the existence of underlying tort; (2) the defendant’s knowledge of the tort; (3) the defendant’s use of deception to conceal the tort; and (4) the plaintiff’s reasonable reliance on the deception. Id.

         Again, as stated previously, the reason the Texas Supreme Court rejected the idea of applying the discovery rule to wrongful death cases in Moreno is because § 16.003(b) of the Tex. Civ. Prac. & Rem. Code fixes when a wrongful death cause of action accrues. As such, the Court held that the discovery rule cannot be applied to alter this statutory intent. Note, however, that this holding does not preclude the application of the doctrine of fraudulent concealment in the wrongful death context. First, the Moreno court was not faced with the issue of fraud and thus the applicability of the doctrine of fraudulent concealment was not addressed in that case. Furthermore, the doctrine of fraudulent concealment can be distinguished from the discovery rule in that the doctrine leaves the statute of limitations intact. In other words, rather than extending the period within which a party can file a wrongful death claim, which is what the discovery rule does when it is applied, the doctrine of fraudulent concealment merely estops the defendant from asserting the defense of limitations, much like a pre-suit discovery sanction. Therefore, the concern of the Texas Supreme Court in Moreno of ignoring legislative intent is not present with the application of the fraudulent concealment doctrine in the wrongful death context.

5. Conclusion:

   Perhaps the most interesting aspect of the case law on limitations is that all of the reported cases are decided in the summary judgment context. Apparently, if a defendant cannot win on this defense as a matter of law, it is not willing to try the "due diligence", discovery rule or fraudulent concealment issues to a jury. A second interesting aspect of these cases is the effect of other bodies of law on the various tolling exceptions created by the courts. Specifically, the interplay between the discovery rule’s causation element in latent disease cases and the proof requirement of Daubert v. Merrell Dow Pharmaceuticals, 113 S.Ct. 2786 (1993 and I.E. du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 553 (Tex. 1995) pertaining to the adequacy of a scientific basis for a causal relationship between an exposure and disease or condition is an open question. Seemingly, if a defendant obtains a summary judgment, directed verdict or rendition on appeal of the causal link between its conduct or product and the plaintiff’s condition or illness because of a failure to meet the Daubert/Robinson proof requirements, then that should free the plaintiff to await the development of a more favorable body of medical or scientific evidence without fear of a limitations defense. Put bluntly, how could a defendant reasonably contend that a plaintiff knew of a causal relationship between a wrongful act and an injury when the defendant not only denied the relationship, but disproved it as a matter of law? The resolution of this issue, among others, will be most interesting.

1. An unexplained delay in effecting service constitutes a lack of due diligence as a matter of law. Taylor v. Thompson, 4 S.W.3d at 65; Clemons v. Denson, 981 S.W.2d 941, 946 (Tex.App.--Houston [1st Dist.] 1998, pet. denied).
2. Note, however, this case somewhat contradicts other holdings that (1) the duty to use due diligence continues from the date the suit is filed until the date the defendant is served and (2) it is the responsibility of the party requesting service to ensure that service is properly effectuated. See, e.g., Taylor v. Thompson, 4 S.W.3d at 65; Broom v. MacMaster, 992 S.W.2d at 664; Lexington Ins. Co. v. Buckingham Gate, Ltd., Inc., 993 S.W.2d at 190; Jimenez v. County of Val Verde, 993 S.W.2d at 168.
3. As a consequence of this requirement, at least one Texas court has declined to extend the "lack of prejudice" exception to individual (as opposed to corporate) defendants. See Cortinas v. Wilson, 851 S.W.2d 324 (Tex. App.-Dallas 1993, no writ).
4. The originally named defendant in this case, Lone Star Gas, was a wholly owned subsidiary of the latter named Defendant, Enserch Corp.
5. Plaintiffs alleged Lone Star Gas to be a wholly owned subsidiary of Enserch Corp.
6. When a cause of action accrues is a question of law. Savage v. Psychiatric Institute of Bedford, 965 S.W.2d 745, 750 (Tex. App.-Fort Worth 1998, no pet.); Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716, 719 (Tex. App.-San Antonio 1998, no pet.).
7. Whether the discovery rule should apply is also a question of law. Vasecky v. Vesecky, 880 S.W.2d 804, 806 (Tex. App--Dallas 1994, rev'd on other grounds, 933 S.W.2d 1 (Tex. 1996)).
8. This analysis applies to when one discovers or should have discovered the nature of the injury, not the time when one discovers the parties allegedly at fault. Martz v. Weyerhaeuser Co., 965 S.W.2d 584588 (Tex. App.-Eastland 1998, no pet.); see Riojas v. Phillips Properties, Inc., 828 S.W.2d 18 (Tex. App.-Corpus Christi 1991, writ denied).
9. "Unlike traumatic injury cases, a plaintiff who suffers from a latent injury or disease typically does not and cannot immediately know about the injury or its cause because these injuries often do not manifest themselves for two or three decades following exposure to the hazardous substance . . . 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." Childs v. Haussecker, 974 S.W.2d at 37. As a consequence, toxic tort cases generally apply the discovery rule based on the inherent undiscoverability of diseases such as silicosis and asbestosis.
10. Again, medical malpractice cases are not addressed in this paper because they will be addressed in detail in another paper to be presented at this CLE.
11. Note that the types of evidence that would suffice to satisfy this element as indicated by the court include a: confession of the abuser, contemporaneous records or written statements of the abuse such as diaries or letters; medical records of the abused individual showing contemporaneous physical injury resulting from abuse; photographs or recordings of abuse; an objective eyewitness account, etc. Id. at 15.
12. See also L.C. v. A.D., 971 S.W.2d 512 (Tex. App.-Dallas 1997, writ denied) (holding that plaintiff should have been aware of the nature of her injuries by the date on which she stated she knew that there might be sexual abuse in her background, for purposes of discovery rule for accrual of statute of limitations, even though she had not yet actually recalled the details of the abuse); see also Grace v. Colorito, 4 S.W.2d 765, 770 (Tex. App.-Austin 1999, writ denied) (holding that the patient's allegation that false memories instilled in her by her counselor kept her from discovering her claim within the limitations period was not "objectively verifiable" thereby prohibiting the application of the discovery rule.
13. See also e.g. Seibert v. General Motors Corp., 853 S.W.2d 773 (Tex. App.-Houston [14th Dist.] 1993, no writ) (holding that passenger's injury was not "inherently undiscoverable" and thus the discovery rule was inapplicable to toll the statute of limitations).
14. Note that the driver plaintiff was a minor at the time of the accident and thus her causes of action were tolled until she reached the age of majority.
15. The single action rule is discussed in more detail infra.
16. The second case addressed by the Haussecker court is styled Humble Sand & Gravel, Inc. v. Martinez.
17. The single action rule provides that a plaintiff has one indivisible cause of action for all damages arising from a defendant's single breach of a legal duty and thus prevents the splitting of claims. Id. at *3.

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