June Fisher, Individually and as Representative of the Estate of Alan Fisher v. BNSF Railway Company, (Individually and as Successor-In Interest to the Burlington Northern & Santa Fe Railway Company, Atchison and Quincy Railroad Company, Burlington Northern, Inc., and Burlington Northern Railroad Company)

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00369-CV
___________________________

JUNE FISHER, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE
OF ALAN FISHER, Appellant

V.

BNSF RAILWAY COMPANY, (INDIVIDUALLY AND AS SUCCESSOR-IN
INTEREST TO THE BURLINGTON NORTHERN & SANTA FE RAILWAY
COMPANY, ATCHISON AND QUINCY RAILROAD COMPANY, BURLINGTON
NORTHERN, INC., AND BURLINGTON NORTHERN RAILROAD COMPANY),
Appellee

On Appeal from the 96th District Court
Tarrant County, Texas
Trial Court No. 096-330963-21

Before Sudderth, C.J.; Birdwell and Wallach, JJ.
Opinion by Justice Wallach
 OPINION

This is an appeal from a take-nothing summary judgment that presents a

question of first impression in Texas involving the enforceability of a release of

unknown future claims when settling an existing claim under the Federal Employers

Liability Act (FELA). Alan Fisher (Alan) was a long-time employee of BNSF Railway

Company and its predecessor entities (BNSF). As a result of Alan’s employment-

related exposure to toxic substances, including asbestos, he was diagnosed with

asbestosis. In June 2006, while represented by counsel, Alan settled and released

claims he had against BNSF for personal injuries arising from work-related exposures

to various toxic substances, including asbestos. Alan executed a release of his claims,

which included known claims and risks of unknown future claims, including for

cancer, related to his work exposure to asbestos.

In 2016, Alan was diagnosed with lung cancer and died in 2018. His wife, June,

individually and as representative of Alan’s estate, filed suit on March 21, 2021 against

BNSF, seeking to recover damages arising from Alan’s cancer. June admitted that

Alan’s lung cancer was related to his exposure to asbestos while working for BNSF.

BNSF moved for summary judgment based on Alan’s prior release. Relying on Babbitt

v. Norfolk & Western Railway Co., June responded that the FELA prohibits the release

of claims for future injuries not known to exist at the time of execution of the release.

104 F.3d 89, 93 (6th Cir. 1997). Relying on Callen v. Pennsylvania Railroad Company,

BNSF responded that June’s interpretation of the FELA was incorrect and that it

2
allows the release of unknown future claims where the parties’ intent is to do so

provided the employee is aware of the risk of such claims when the release is signed.

332 U.S. 625, 631 (1948). The trial court granted BNSF’s motion for summary

judgment and dismissed June’s claims with prejudice. Finding no reversible error, we

will affirm the judgment of the trial court.

I. Background

Alan worked for BNSF for over forty years as a sheet metal worker. Around

2005, Alan hired an attorney for “a cognizable claim for his asbestosis injuries” arising

from exposure to asbestos while employed by BNSF. In 2006, BNSF and Alan settled

his asbestos-exposure claim. BNSF paid Alan $29,500, and Alan executed a release

approved by his attorney. That release provided a “full compromise, settlement,

discharge and satisfaction” of “all claims, demands, or causes of action” against BNSF

“on account of all illnesses and injuries to the person, including those that may

hereafter develop as well as those now apparent and all complications thereof.” The

release covered all claims “including, but not limited to, any claim or cause of action,

known or unknown, present or future, for alleged injury, damages, expenses, or death

arising out of any alleged exposure to “Asbestos,” “Asbestos Containing Materials,” or other

“Toxic Substances during the course of my employment with BNSF Railway Company.”

[Emphasis added.] It also specifically released BNSF “for all suits, actions, causes of

action, claims and demands of every character whatsoever [for] asbestos-related illnesses

including but not limited to cancer, risk of cancer, and fear of cancer.” [Emphasis added.] Alan

represented that he “fully understood and voluntarily accepted” the settlement’s
3
terms. He also represented that he relied upon his counsel’s advice, that his attorney

“completely explained” the agreements in the release, and that he did not rely on any

representations from BNSF. Alan executed the release, and his attorney signed it as

“APPROVED.” June signed as a witness.

Subsequently, Alan became ill and was diagnosed with lung cancer. He passed

away in 2018. In March 2021, June sued BNSF under the FELA, alleging that BNSF

negligently exposed Alan to asbestos and other toxic substances, and that the

exposure led to his lung cancer and death. June conceded that Alan developed

“asbestos-related cancer.” BNSF denied liability and asserted that the 2006 release

barred June’s suit. BNSF moved for summary judgment on that basis, and the trial

court granted BNSF’s motion.

II. Legal Standards

We review an order granting summary judgment de novo. Godoy v. Wells Fargo

Bank, N.A., 575 S.W.3d 531, 536 (Tex. 2019). We consider the evidence presented in

the light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors,

Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference

and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d

392, 399 (Tex. 2008). We must consider whether reasonable and fair-minded jurors

could differ in their conclusions considering all of the evidence presented. Wal-Mart

Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d
4
802, 822–24 (Tex. 2005). In a traditional summary judgment case, the issue on appeal

is whether the movant met the summary judgment burden by establishing that no

genuine issue of material fact exists and that the movant is entitled to judgment as a

matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort, 289 S.W.3d at 848. Traditional

summary judgment is improper if there is more than a scintilla of probative evidence

raising genuine issues of material fact. Petit v. Maxwell, 509 S.W.3d 542, 546–47 (Tex.

App.—El Paso 2016, no pet.).

When a defendant moves for summary judgment on an affirmative defense,

“he has the burden to conclusively prove all the essential elements of its defense as a

matter of law, leaving no issues of material fact.” Garza v. Williams Bros. Const. Co.,

879 S.W.2d 290, 294 (Tex. App.—Houston [14th Dist.] 1994, no writ). If the

defendant meets his initial burden by “establish[ing] his right to an affirmative defense

as a matter of law, the burden shifts to the plaintiff to produce controverting evidence

that raises a fact issue on the defendant’s affirmative defense.” Id. at 294–95. Even

then, the burden remains on the defendant to negate the issues raised to conclusively

establish its right to summary judgment. Id. at 295.

A contractual release is an affirmative defense. See Tex. R. Civ. P. 94. To

establish its elements, “the party asserting the defense of release is required to prove

the elements of a contract.” In re J.P., 296 S.W.3d 830, 835 (Tex. App.—Fort Worth

2009, no pet.). Because the FELA is a federal statute, the “FELA cases adjudicated in

state courts are subject to state procedural rules, but the substantive law governing

5
them is federal.” St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S. Ct. 1347,

1348 (1985); BNSF Ry. Co. v. Phillips, 485 S.W.3d 908, 910 (Tex. 2015).

BNSF, as summary judgment movant, initially bore the burden of showing

there is no issue of material fact and that it was entitled to judgment as a matter of

law. See Tex. R. Civ. P. 166a. The review begins with the release language. Callen,

332 U.S. at 630, 68 S. Ct. at 298 (noting that releases of railroad employees stand on

the same basis as the releases of others and are entitled to prima facie validity);

Mendoza-Gomez v. Union Pac. R.R. Co., No. 4:19-CV-4742, 2021 WL 3469998, at

*4 (S.D. Tex. July 27, 2021), aff’d, No. 21-20397, 2022 WL 1117698, at *3 (5th Cir.

Apr. 14, 2022) (not for publication). Where it is undisputed that an employee signs a

release of the FELA claim, federal law shifts the burden to the nonmovant to

establish the invalidity of the release. Callen, 332 U.S. at 630, 68 S. Ct. at 298 (“One

who attacks a settlement must bear the burden of showing that the contract he has

made is tainted with invalidity . . . .”); Wicker v. Consol. Rail Corp., 142 F.3d 690,

696 (3d Cir. 1998)); see also Jarrett v. Consol. Rail Corp., 185 A.3d 374, 380 (Pa. Super. Ct.

2018); Blackwell v. CSX Transp., Inc., 102 A.3d 864, 868 (Md. Ct. Spec. App. 2014);

Jaqua v. Canadian Nat’l R.R., Inc., 734 N.W.2d 228, 232 (Mich. Ct. App. 2007).

III. Analysis

June contends that the trial court erred in granting the summary judgment for

two reasons: (1) Section 5 of the FELA bars releases of future injuries, rendering the

release unenforceable (Section 5 issue), or (2) genuine fact issues exist regarding the

6
parties’ intent regarding the release of future risks when the release was executed. We

will overrule both points and affirm the take-nothing judgment of the trial court.

a. Clean Slate on Section 5 Issue

The Section 5 issue concerns whether Section 5 voids a release of unknown

future claims made as part of the settlement of an existing claim made under the

FELA. 45 U.S.C. § 55. We begin our analysis by determining where we must look to

find our basis for decision. Both sides agree that the United States Supreme Court has

not decided the issue of whether Section 5 prohibits an injured worker from releasing

unknown future claims as part of the settlement of an existing claim. Both parties

acknowledge that there is a split of authority in the federal circuits and in other state

courts on this question, and no Texas state court has addressed the issue. We

therefore are writing from a clean slate. See Penrod Drilling Corp. v. Williams, 868 S.W.2d

294, 296 (Tex. 1993) (“While Texas courts may certainly draw upon the precedents of

the Fifth Circuit, or any other federal or state court, in determining the appropriate

federal rule of decision, they are obligated to follow only higher Texas courts and the

United States Supreme Court.”); see also In re Morgan Stanley & Co. Inc., 293 S.W.3d 182,

189–90 (Tex. 2009); Johnson v. Nat’l Oilwell Varco, LP, 574 S.W.3d 1, 10 (Tex. App.—-

Houston [14th Dist.] 2018, no pet.).

b. Split of Authority on Section 5 Issue

The validity of releases under the FELA raises a federal question to be

determined by federal law rather than state law. Monessen Sw. Ry. Co. v. Morgan,

486 U.S. 330, 335, 108 S. Ct. 1837, 1842 (1988); Dice v. Akron, Canton & Youngstown R.
7
Co., 342 U.S. 359, 361, 72 S. Ct. 312, 314 (1952). Section 5 of the FELA provides that

“[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which

shall be to enable any common carrier to exempt itself from any liability created by

this [act] shall to that extent be void.” 45 U.S.C. § 55.

The United States Supreme Court has held,

It is obvious that a release is not a device to exempt from liability but is a
means of compromising a claimed liability and to that extent recognizing
its possibility. Where controversies exist as to whether there is liability,
and if so for how much, Congress has not said that parties may not settle
their claims without litigation.

Callen, 332 U.S. at 631, 68 S. Ct. at 298–99. As noted by the Virginia Supreme Court,

Application of § 5 of FELA remains unclear in many respects. The
United States Supreme Court has not clarified what constitutes a
“controversy” that parties may settle without litigation. Wicker, 142 F.3d
at 698 (“Although the Supreme Court in Callen refused to void the
releases executed in compromise of an employee’s claims, the Court has
not had occasion to explain how wide a net its ruling casts.”). Courts
have diverged when a release attempts to extinguish claims for known
injuries and also for known risks of future injuries that have yet to, and may never,
manifest.

Cole v. Norfolk S. Ry. Co., 803 S.E.2d 346, 350 (Va. 2017) (emphasis added).

A split in the federal circuits has developed regarding the validity of such

releases. The first approach comes from the Sixth Circuit’s decision in Babbitt, where

the court adopted a bright-line rule under which a release is only valid as to a known,

existing injury—not to future, undiagnosed conditions. 104 F.3d at 93. In Babbitt, the

trial court held that a prior release signed by former employees did bar their suit for

hearing loss caused by excessive noise levels at the defendant railroad’s facilities. Id. at

90–91. The employees signed the releases as part of an early-retirement program. Id.
8
at 90. The railroad nonetheless argued that several plaintiffs were aware of their

hearing problems before signing the release, thus proving that the releases specifically

contemplated their claims. Id.

The Sixth Circuit disagreed. After surveying Section 5’s text and U.S. Supreme

Court opinions, the court held that an employee could validly release a claim “that

settles a specific injury sustained by an employee.” Id. at 93. But under Section 5, that

release could only go so far: “To be valid, a release must reflect a bargained-for

settlement of a known claim for a specific injury, as contrasted with an attempt to

extinguish potential future claims the employee might have arising from injuries

known or unknown by him.” Id. The release would bar the plaintiffs’ claims only if it

“was clearly executed as a settlement for” their “specific injuries in controversy.” Id.

Thus, in Babbitt, the Sixth Circuit “adopted a bright[-]line rule that a release may

be valid only regarding . . . injuries that are known at the time the release is executed.”

Loyal v. Norfolk S. Corp., 507 S.E.2d 499, 502 n.4 (Ga. Ct. App. 1998). Other courts

have applied that test. See, e.g., Chacon v. Union Pac. R., 56 Cal. App. 5th 565, 580 (Cal.

Ct. App. 2020) (release for prior accident did not bar later suit for future, unrelated

claims for exposure to toxic substances); Arpin v. Consol. Rail Corp., 75 N.E.3d 948,

955 (Ohio Ct. App. 2016) (release settling previous nonmalignant asbestosis claim did

not bar subsequent cancer-related claim); Anderson v. A.C. & S., Inc., 797 N.E.2d 537,

544 (Ohio Ct. App. 2003) (release of asbestos-exposure claim did not bar later claim

for mesothelioma).

9
 The second approach originated from the Third Circuit in Wicker v. Conrail,

where the court analyzed the enforceability of releases that resolved alleged FELA

liability claims against the railroad. 142 F.3d at 699. There, multiple rail workers

previously executed releases for injuries unrelated to the chemical exposure claims

they made in the later lawsuits. Id. at 692–93, 699. The trial court granted the

railroad’s summary judgment motions in the exposure lawsuits based upon the prior

releases. Id. at 694.

On appeal, the Third Circuit analyzed the releases in light of the FELA’s

Section 5. Id. at 696–701. Relying on Callen, the court held that “[r]eleases are not per

se invalid under FELA.” Id. at 697. The court held that the release of the FELA claim

is valid “provided it is executed for valid consideration as part of a settlement, and the

scope of the release is limited to those risks which are known to the parties at the time

the release is signed.” Id. at 701 (emphasis added). In contrast, it wrote that “[c]laims

relating to unknown risks do not constitute ‘controversies,’ and may not be waived

under [Section] 5 of FELA.” Id. (Emphasis added). Thus, a release does not violate

Section 5 when it “spells out the quantity, location and duration of potential risks to

which the employee has been exposed . . . allowing the employee to make a reasoned

decision whether to release the employer from liability for future injuries of specifically

known risks.” Id. (emphasis added). Ultimately, the court held that a release satisfies the

FELA when it “is limited to those risks which are known by the parties at the time the

release is negotiated.” Id. at 702 (emphasis added).

10
 The Third Circuit later applied Wicker in a nearly identical case to this one and

held that the release barred a subsequent FELA cancer claim. Collier v. CSX Transp.,

Inc., 673 F. Appx 192, 196–98 (3d Cir. 2016) (not for publication). There, a rail worker

brought a claim alleging exposure to asbestos and other contaminants. Id. at 194. The

worker settled his claim and released the railroad from liability for all diseases,

“including cancer, arising from or contributed to by exposure to any and all toxic

substances.” Id. Years later, the worker was diagnosed with lung cancer, and he

brought suit based on that same allegedly negligent exposure. Id. The Third Circuit

affirmed the trial court’s dismissal, succinctly explaining that “Collier sued CSX based

on his exposure to asbestos and settled that claim by executing a release that

specifically released any claim for cancer that might arise from his work-related

exposure.” Id. at 197. The court thus concluded the rail worker “could not plausibly claim

that he did not know that cancer was a risk of asbestos exposure.” Id. (emphasis added).

It has been reported that the majority of state and federal courts which have

considered this issue have followed Wicker. Murphy v. Union Pac. R.R. Co., 574 S.W.3d

676, 682 (Ark. Ct. App. 2019) (“We choose to follow the majority of state and federal

courts that have held Wicker is the better standard.”); see also Cole v. Norfolk S. Ry. Co.,

803 S.E.2d 346, 352 n.1 (Va. 2017) (noting that the Wicker test has been adopted by

the majority of courts which have considered the question); Ward v. Ill. Cent. R.R. Co.,

271 So. 3d 466, 472–73 (Miss. 2019) (applying Wicker, holding that prior asbestos

release covered subsequent FELA cancer claim); Jarrett, 185 A.3d at 378–79 (same);

11
Cole, 803 S.E.2d at 354–55 (same); Jaqua, 734 N.W.2d at 237 (same); Oliverio v. Consol.

Rail Corp., 822 N.Y.S.2d 699, 703 (N.Y. Sup. Ct. 2006) (same).

Finally, some courts have declined to adopt either Wicker or Babbitt. A recent

case from a district court within the Fifth Circuit exemplifies this position. Mendoza-

Gomez, 2021 WL 3469998, at *4, *5. The plaintiff was a long-time employee of Union

Pacific Railroad Company (UP). In 2012, UP paid him an undisclosed sum of money

(amount redacted from the release submitted for summary judgment) to settle an

injury claim arising from exposure to asbestos and silica. The release agreement

provided that it was a

full and complete compromise of any and all Claims which have accrued
or which may hereafter accrue in favor of [Plaintiff] and against Union
Pacific as a result of [Plaintiff’s] alleged illnesses, injuries, cancers, future
cancers, diseases, and/or death . . . as a result of Alleged Exposures
while [Plaintiff] was employed by Union Pacific.

Id. at *4. The agreement defined “Alleged Exposure” as “any and all exposures by

breathing, touching, ingesting, or otherwise, to any toxic materials, asbestos, dusts,

fumes, gases, metals or chemicals, alleged to be Caused or contributed to by . . .

Union Pacific.” Id. at *5. The release “not only includes Claims which are presently

existing or known, but also claims which may develop or become known in the

future.” Id. at *4.

The plaintiff thereafter was diagnosed with lung cancer and asbestosis. Id. at *1.

He sued UP for damages under the FELA for cancer and asbestosis related to his

exposure to various substances, including asbestos and silica. Id. at *5. UP moved for

summary judgment based on the 2012 release. Id. at *4. The plaintiff argued that the
12
release was void under Babbitt and sought to distinguish Wicker. The trial court found

neither Babbitt nor Wicker to be binding. Id. at *4. It granted summary judgment to UP

on the face of the release, holding that the release covered future claims for illnesses,

including cancer as a result of alleged exposure to the substances identified in the

release, one of which was asbestos. These were future risks disclosed on the face of

the release executed as part of a full compromise of litigation. Thus, they were not

barred under Section 5. Id. at *4 (citing Callen, 332 U.S. at 631).

Although the Fifth Circuit opinion affirming the district court’s summary

judgment was not published, we find the court’s analysis informative. Like the district

court, the Fifth Circuit held that the release was an enforceable agreement between

the parties and did not violate the FELA’s Section 5 since it was part of the

compromise of litigation, citing to Callen. The plaintiff raised a recent district court

opinion, Hartman v. Ill. R.R. Co., No. 20-1633, 2022 WL 912102, at *1–2 (E.D. La.

Mar. 29, 2022), where a plaintiff challenged the validity of the FELA release of future

claims because the release language was boilerplate (settlement of a middle-finger

injury claim being used to release a subsequent cancer claim), applying Wicker.

Mendoza-Gomez v. Union Pac. RR., Co., No. 21-20397, 2022 WL 1117698, at *3 n.1 (5th

Cir. Apr. 14, 2022).1 The Fifth Circuit, after pointing out that it was not bound by a

district court decision, distinguished that release with the following comment,

Mendoza-Gomez indicates that the injury in Hartman was to the plaintiff’s
1

thumb. Id. Hartman states the injury was to the plaintiff’s middle finger.
2022 WL 912102, at *1.

13
 Unlike Hartman, Mendoza-Gomez’s original claim against the railroad
company involved his alleged exposure to toxic chemicals—not a thumb
injury. Consequently, the release Mendoza-Gomez signed was specific to the types of
injuries involved in his original complaint against Union, as well as those he claimed
he suffered years later—including “cancers” and “future cancers.” In other words, the
list of claims Mendoza-Gomez released was not a boilerplate list of hazards unrelated
to his current claims and he cannot now claim that the release did not evince his clear
intent to release Union from liability for his alleged cancer in this suit. For these
reasons, we conclude that Hartman, even if controlling, would have no
bearing on Mendoza-Gomez’s appeal.

Id. (emphasis added).

c. Resolution of Section 5 Issue

First, we decline to adopt the bright-line test adopted in Babbitt. The cases cited

above demonstrate that the Babbitt bright-line rule is the minority position in the state

and federal courts that have examined the question, which the parties do not dispute.

For the reasons explained in Jaqua, Loyal, Oliverio, and Illinois Central Railroad Co. v.

Acuff, 950 So. 2d 947, 960 (Miss. 2006), we decline to adopt the Babbitt rule.2

2
Jaqua, 734 N.W.2d at 229 (“The rationale in Wicker allows the employer and
the employee the freedom to negotiate and settle claims, but protects the employee
from releasing the employer for unknown liability that was not considered and
resolved in an informed manner.”); Loyal, 507 S.E.2d at 502 (“Clearly, in an industry,
such as the railroad industry, that has a number of known occupational risks and
diseases, it is important to both the employer and employee to be able to settle
potential claims regarding injuries or diseases prior to actual discovery.”); Oliverio,
822 N.Y.S.2d at 701–02 (stating that while the Babbitt approach may appear to “enable
an easier resolution of the manner in which a release is enforced, the result may be
either more complicated inquiry into the exact nature and scope of the injury
compromised[ ] or a chilling effect on the resolution by compromise of any claims,”
and, further, that “[t]his result would not further the public policy of encouraging
settlement of claims.”); Ill. Cent. R.R. Co., 950 So. 2d at 960 (“We believe that Babbitt’s
rule barring the release of future claims unfairly restricts the ability of an employer and
employee to knowingly and voluntarily settle both current and future claims, should
the parties so desire.”).

14
 Second, we need not decide whether it is necessary to adopt the Wicker rule.

The result is the same in this case whether we apply the Wicker rule or the Mendoza-

Gomez analysis.

We begin with the Wicker rule application, which is best exemplified in the

Jarrett case. Jarrett was employed by Conrail. He developed non-malignant asbestosis

and filed suit against Conrail under the FELA in 1997. In 2004, he settled his case and

executed a release for that claim and

for all claims or actions for all known and unknown, manifested and
unmanifested, suspected and unanticipated pulmonary-respiratory
diseases, and/or injuries including but not limited to medical and
hospital expenses, pain and suffering[,] loss of income, increased risk of
cancer, fear of cancer, and any and all forms of cancer, including mesothelioma and
silicosis, arising in any manner whatsoever, either directly or indirectly, in
whole or in part, out of exposure to any and all toxic substances, including
asbestos, silica, sand, diesel fumes, welding fumes, chemicals, solvents,
toxic and other pathogenic particulate matters, coal dust, and all other
dusts, fibers, fumes, vapors, mists, liquids, solids, or gases, during
RELEASOR’S employment with RELEASEE.

Jarrett, 185 A.3d at 375. The release also acknowledged that he relied on his own

judgment with the advice and approval of his own counsel. Id. at 376.

In 2014, Jarrett developed asbestos-related lung cancer from his exposure to

asbestos while working for Conrail. Jarrett and his wife sued Conrail again under the

FELA; during the proceedings Jarrett died and his wife took over the litigation as

representative of his estate and for her own recovery. Id. at 376 n.2. Conrail moved

for summary judgment asserting the 2004 release as a bar to the claims “as it had

released Conrail from future liability related to any workplace-related pulmonary-

respiratory diseases and/or injuries, including cancer, contracted after the execution of
15
the release.” Id. Jarrett responded that whether a release for a non-malignant

condition bars recovery for future malignancy claims is a jury question. Id. Jarrett did

not offer any evidence to question the validity of the release. The trial court granted

Conrail’s motion for summary judgment.

The court noted that the Wicker rule governed the case, id. at 379, and that the

party challenging the validity of the release, Jarrett, had the burden to establish its

invalidity. Id. at 379–80. The court found the release to be clear and unambiguous on

its face that it released future claims for “‘any and all forms of cancer . . . arising in any

manner whatsoever . . . out of exposure to . . . asbestos . . . during [Decedent’s]

employment with [Conrail],’” id. at 379, which was exactly what Jarrett was alleging.

The appellate court then applied the familiar standard for summary judgment

proceedings,

[A] non-moving party must adduce sufficient evidence on an issue
essential to his case and on which he bears the burden of proof such that
a jury could return a verdict in his favor. Failure to adduce this evidence
establishes that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Ertel v. Patriot–News Co.,
544 Pa. 93, 674 A.2d 1038, 1042 (1996). See Pa.R.C.P. 1035.2(2)
(summary judgment appropriate where adverse party bearing burden of
proof at trial fails to produce evidence of facts essential to cause of
action which in jury trial would require issues be submitted to jury). The
mere propounding of legal theories, without any supporting evidence
that would raise a question of fact, does not sustain that burden.

16
Id. at 380. The court then affirmed the summary judgment for Conrail, noting that

Jarrett had brought forth no factual evidence to challenge the validity of the release.

Id. at 380.3

In Mendoza-Gomez, the district court rejected both Babbitt and Wicker as

controlling authority. 2021 WL 3469998, at *4. Although the Fifth Circuit did not

address the Babbitt versus Wicker issue, both the district court and the Fifth Circuit

found the release enforceable under the FELA’s Section 5, citing Callen, because the

release was given for consideration in settlement of an existing FELA claim and the

release clearly anticipated and covered the risk of future claims being asserted in the

subsequent litigation. Mendoza-Gomez, 2022 WL 1117698, at *3; Mendoza-Gomez,

2021 WL 3469998, at *4–5.

Of note, in affirming the summary judgment for UP, the Fifth Circuit cited to

Sanders v. Christwood, 970 F.3d 558, 561 (5th Cir. 2020), involving, in part, a Title VII

intentional discrimination case. The employer moved for summary judgment. Because

the plaintiff provided no direct evidence of racial discrimination, the court employed a

burden shifting process where the plaintiff had the burden of establishing a prima

facie case of racial discrimination. If that burden is met, the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for the employer’s

action. If the employer meets that burden, the plaintiff must show that the stated

A similar result can be found in other cases applying the Wicker rule. See, e.g.,
3

Ward, 271 So. 2d at 472–73; Jaqua, 734 N.W.2d at 237; Collier, 673 Fed. Appx. at 196–
97.

17
reason was a pretext. Id. at 561–62. Because the plaintiff failed to meet her burden,

the court held that her claim failed on her first claim.

We infer, from the court’s reliance on Sanders, an analogy that UP established

its right to judgment as a matter of law based on the face of the release and, since

Mendoza-Gomez had not established a basis to avoid the release, that UP was entitled

to judgment. Cf. Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990) (“In a subsequent

suit for an unknown injury, once the affirmative defense of release has been pleaded

and proved, the burden of proof is on the party seeking to avoid the release to

establish mutual mistake.”).

The uncontroverted evidence here is that in 2005 Alan made a cognizable

FELA claim against BNSF for injuries related to asbestos exposure. BNSF agreed to

pay money to Alan for a release of those claims, which Alan accepted. The release

covered that claim, and it also provided for a release of future claims arising from his

exposure to asbestos, including cancer related to such exposure. He thereafter

developed asbestos-related cancer and made this claim against BNSF under the

FELA, which his wife now pursues as his estate representative. The release, on its

face, is unambiguous and clearly reflects that the current claim for asbestos-related

cancer was a risk within the contemplation of the parties at the time the release was

signed. Alan was represented by counsel who approved the release. Such being the

case, BNSF established its right to summary judgment as a matter of law and the

burden shifted to June to bring forth evidence to raise a prima facie basis for invalidity

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of the release. She did not do so. Therefore, under either Wicker or Mendoza-Gomez,

either of which is consistent with Texas summary judgment procedure, the trial court

did not err in granting summary judgment in favor of BNSF. We overrule June’s issue

number one.

d. No Fact Question on Intent to Release Future Claims

In the trial court, June filed her Response to Defendant’s Motion for Summary

Judgment. She did not file any evidence in support of her response. In fact, she

contended in that response that “[t]he only pertinent issue currently before the court

is whether a release purporting to bar future, unknown injuries, is valid pursuant to

45 USC 55.” June’s response consisted of legal arguments in support of that legal

contention. However, she now contends that “[a]t any rate, genuine issues of material

fact exist as to the parties’ intent on future risks at the time of executing the release,

thus rendering summary judgment inappropriate.”

Because the existence of a fact issue on intent on future risks was not raised at

the trial court, it was waived. Babineaux v. Citimortgage, Inc., No. 02-17-00124-CV,

2017 WL 6616239, at *6 (Tex. App.—Fort Worth Dec. 21, 2017, pet. denied) (mem.

op.) (stating appellate court cannot reverse a summary judgment on a ground not

advanced in the trial court). However, assuming the point was not waived, it is

without merit. June’s response was a collection of legal arguments. Legal arguments

are insufficient to create a fact issue on appeal. Jarrett, 185 A.3d at 380; cf

Maximusalliance Partners, LLC v. Faber, No. 05-13-01688-CV, 2015 WL 707033, at

*9 (Tex. App.—Dallas Feb. 17, 2015, no pet.) (mem. op.) (“[N]o evidence is identified
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by which a trial court could determine the existence of a material issue of fact . . . .”);

Ellis v. Renaissance on Turtle Creek Condo. Ass’n, Inc., 426 S.W.3d 843, 855 (Tex. App.—

Dallas 2014, pet. denied) (“[Nonmovant’s] argument in his summary judgment

response does not constitute evidence and therefore cannot raise a fact issue.”). We

overrule June’s issue number two.

IV. Conclusion

Having overruled both of June’s points on appeal, we affirm the judgment of

the trial court.

/s/ Mike Wallach
Mike Wallach
Justice

Delivered: July 14, 2022

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