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Click here for the full text of this decision FACTS:In March 2000, Roger Dixon filed a personal injury lawsuit against E.D. Bullard and Lone Star Industries arising out of exposure to silica during his employment as a sandblaster from 1971 to 1985. The defendants filed a joint motion for summary judgment on the defense of limitations on Feb. 21, 2002. The defendants conceded the application of the discovery rule to Dixon’s claims. Dixon filed his response to the motion on March 11. The defendants filed a joint reply on March 15, which contained summary judgment evidence not previously presented, but which had not been submitted on a motion for leave to file additional summary judgment evidence. Also on March 15, Dixon filed his fourth amended petition, in which he pleaded the application of the discovery rule. Dixon then filed a motion to strike the joint reply on March 18, to which the defendants did not respond. The defendants’ evidence included records related to Dixon’s six-day hospital stay in Tulsa, Okla., in late November 1996. His discharge summary on his release said that the symptoms he exhibited � including shortness of breath, green sputum, nausea and vomiting � indicated possible tuberculosis. The discharge also indicated that Dixon had been homeless in the deserts of California, Nevada and Arizona earlier that year. The discharge contained a summary of Dixon’s chest x-ray also referred to the possibility of tuberculosis. It noted that Dixon was a veteran who has had bad chest x-rays in the past but which were unavailable for comparison. The discharge contained this diagnosis: “[a]ctive pulmonary tuberculosis” and “[s]ilicosis secondary to twelve-year history of sandblasting.” It recommended that Dixon seek further treatment at a tuberculosis clinic; and a follow-up note a week after Dixon’s release stated that the sputum cultures tested positive for tuberculosis and that the patient should be notified. Dixon submitted additional documents related to that hospital stay. In the patient history section, he noted his own statement that he had no history of pneumonia or tuberculosis, and that the doctors’ initial impression was of “probable” pneumonia and “questionable” tuberculosis. It also noted the presence of a left inguinal hernia. Prior to surgery on the hernia in 1997, Dixon had a chest x-ray that the doctor said indicated he may have active tuberculosis. A test, however, came back negative. Dixon submitted an affidavit that he was not diagnosed with silicosis until late April or early May of 1998. Dixon’s application for disability insurance benefits originally stated that he that he became unable to work because of his condition in 1990. In a deposition in 2001, he stated he had heard the word “silicosis” in the late 1980s, and that he was hospitalized in 1996 with pneumonia due to silicosis. The trial court held a hearing on all the motions on the 18th, and granted the defendants’ summary judgment motion, and denied Dixon’s motion to strike. Dixon argues on appeal that the trial court should have granted his motion to strike because the trial court’s ruling considered late-filed summary judgment evidence. He also argues that there is a fact question over whether Dixon knew or should have known he had a work-related disease. HOLDING:Reversed and remanded. The court agrees with Dixon that the defendants’ summary judgment evidence should have been filed at least 21 days before the hearing day, except on leave of the court. The defendants did not do that. But eschewing Dixon’s suggestion that the trial court relied on improperly submitted evidence, the court presumes that the trial court did not consider this late-filed evidence at all, and based the summary judgment ruling only on the evidence timely submitted by both parties. The court sets out the standard for application of the discovery rule in the latent occupations disease context: the cause of action’s accrual will be deferred “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.” At issue, then, is when Dixon knew or should have known the symptoms he had were likely work-related. The court combs through the details of Dixon’s medical history. The court does not find that Dixon’s 2001 deposition testimony that he had pneumonia in 1996 due to silicosis to be persuasive evidence as to what Dixon knew or should have known regarding his condition and its cause in 1996 or, at a minimum, before March 8, 1998 (more than two years prior to his filing suit). It his “highly plausible,” the court said, that his description of his hospitalization in 1996 was based on his new understanding of his condition (after his affirmative diagnosis of silicosis). The same goes for his statement on his disability insurance benefits application that he’d been disabled since 1990. Instead, the court finds that it was no unreasonable for Dixon to think prior to April 1998 that his respiratory problems were related to tuberculosis, a probable diagnosis he was given more than once. Nor was there evidence that Dixon did not exercise due diligence in following up his own treatment. The court thus finds a fact issue as to when Dixon knew or should have known that his illness was work-related. OPINION:Yates, J.; Yates, Hudson and Fowler, JJ. Hudson, J. dissenting.)

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