Terry v. Niblack

MICHELLE CREIGHTON TERRY, )
)
Plaintiff/Appellant, )
) Davidson County Circuit
) No. 96C-1225
VS. )
) Appeal No.
) 01A01-9609-CV-00447
GARY D. NIBLACK, M.D. and )
LABORATORY INVESTMENTS, INC., )
d/b/a GENE PROOF TECHNOLOGIES, )
Defendants/Appellees.
)
)
FILED
March 12, 1997
IN THE COURT OF APPEALS OF TENNESSEE
Cecil W. Crowson
MIDDLE SECTION AT NASHVILLE
Appellate Court Clerk
APPEAL FROM CIRCUIT COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
HONORABLE HAMILTON V. GAYDEN, JR., JUDGE
Carol L. Soloman, #6649
L.R. Demarco, #2652
Washington Square, Suite 400
214 Second Avenue No.
Nashville, TN 37201-1602
ATTORNEY FOR PLAINTIFF/APPELLANT
Michael M. Castellarin, #12015
Moody, Whitfield & Castellarin
95 White Bridge Road
Suite 509, Cavalier Building
Nashville, TN 37205-1427
ATTORNEYS FOR DEFENDANTS/APPELLEES
REVERSED, VACATED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
MICHELLE CREIGHTON TERRY, )
)
Plaintiff/Appellant, )
) Davidson County Circuit
) No. 96C-1225
VS. )
) Appeal No.
) 01A01-9609-CV-00447
GARY D. NIBLACK, M.D. and )
LABORATORY INVESTMENTS, INC., )
d/b/a GENE PROOF TECHNOLOGIES, )
)
Defendants/Appellees. )
OPINION
The plaintiff, Michelle Creighton Terry, has appealed from the dismissal of her suit
against the defendants, Gary D. Niblack, M.D. and Laboratory Investments, Inc., d/b/a Gene
Proof Technologies, for damages resulting from an erroneous result or report of result of a test
for paternity, and failure to timely notify plaintiff of the error.
The judgment of the Trial Court states that the cause was heard upon defendants’ motion
to dismiss which was granted. Defendants’ motion was entitled a Motion to Dismiss, but it was
supported by evidentiary matter which requires that the judgment be reviewed as a summary
judgment. T.R.C.P. Rule 12.02.
The complaint, filed on April 2, 1996, stated:
4. On February 9, 1994, plaintiff filed in the Juvenile Court a paternity suit against
one James Mitchell Hayner.
5. By agreement, the parties submitted blood samples to the defendants for testing.
6. On or about May 6, 1994, defendants reported that the results of the test were
negative as to Hayner.
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7. Thereafter plaintiff protested to the defendant, Niblack, who assured her of the
accuracy of the test result.
8. On May 29, 1995, on motion of plaintiff, the Juvenile Court ordered a further test
which indicated 99.95% probability of paternity of Haynes.
9. On October 11, 1995, an employee of defendants testified to the Juvenile Court
that a grievous error was committed in the first test and that defendants had failed to notify
plaintiff or the Court of the error.
Defendants’ “Motion to Dismiss” stated that it was filed “pursuant to Rule 12.02 and
56.02" and upon the ground of the statute of limitations. Attached to the motion were certified
copies of plaintiff’s petition to the Juvenile Court motion for additional blood test, an order
sustaining the motion, and an affidavit of a former assistant district attorney.
The order of dismissal does not state the ground upon which it was granted.
On appeal, the plaintiff insists that the one-year statute of limitations (T.C.A. § 29-26-
116) did not begin to until the “discovery of the injury.”
Defendants concede that this is the statutory rule, but rely upon evidence of discovery
more than one year before suit was filed. Plaintiff’s petition to the Juvenile Court states:
Petitioner and Respondent engaged in sexual intercourse;
however, they were not married. Petitioner would further
state that Respondent is the only person with whom she had
sexual relations with prior to, during and after the conception
of the minor child. Petitioner would state that she and
Respondent had sexual intercourse during her fertile period
and Respondent is the father of the unborn child, who is a
baby girl. The unborn child was conceived in May or June,
1993, and is due to be born in mid-February, 1994.
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Defendant argues that a reasonable person having personal knowledge of the facts stated
in the foregoing quotation would be immediately aware that the result of the first test was
incorrect. Defendants’ cite no authority holding that the quoted language of the petition
constitutes evidence of notice of error. Absent expert evidence of the relevant physical and
natural rules, and evidence that such rules are matters of public knowledge, this Court is not
disposed to hold that the statements of the petition show receipt of reasonable notice of error.
In like manner, defendants rely upon the following statements in plaintiff’s motion for
a second test:
For cause, Movant would verily state unto the Court that
no one else had access to her during the time the minor child
was conceived. Further, Dr. Gary Niblack of Gene Proof
Technologies, where the initial test was conducted, informed
Movant’s attorney that there may have been some problems
with the test procedures during the time the initial blood was
performed.
This Court is unwilling to hold that an admission that “there may have been some
problems with the test” constituted notice that there was negligence in conducting the test or
inaccuracy in the result.
Defendants rely upon the doctrine of judicial estoppel to deny that which has been
asserted in a former proceeding. The doctrine might estop plaintiff from denying the truth of that
which was asserted in the former proceeding; but, in this case, the situation is not so simple.
Defendants seek to estop plaintiff from denying notice of errors in the test because she asserted
facts from which a reasonable person would derive notice.
Appellant does not deny knowledge of the facts; she denies that the facts constituted
notice to a reasonable person.
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Finally, defendants argue that plaintiff’s assertion that a defendant admitted that “there
may have been some problem with the test procedure” effectively disproves any allegation of
concealment. This Court does not agree. The test result was either correct or incorrect. “A
problem” does not designate either a correct or an incorrect result, and the correctness or
incorrectness was never ascertained and reported to plaintiff until the completion of the second
test.
A complaint should not be dismissed for failure to state a claim for which relief can be
granted unless it appears beyond doubt that plaintiff can prove no state of facts in support of his
claim that would entitle him to relief. Sullivant v. Americana Homes, Inc., Tenn. App. 1980, 605
S.W.2d 246, 248.
In respect to the present summary judgment, the determinative question of fact is whether
the facts known to plaintiff a year before suit constituted reasonable notice to plaintiff that she
had been injured by wrongful conduct of defendants.
As a general rule, negligence cases are not amenable to summary judgment proceedings
unless, from all the facts together with the inferences from them, the facts and inferences are so
certain and uncontroverted that reasonable minds must agree. Keene v. Cracker Barrel Old
Country Store, Tenn. App. 1992, 853 S.W.2d 501, 505.
The burden of showing that there is no genuine issue of fact falls on the party moving for
summary judgment. Tucker v. Metro. Government, Tenn. App. 1984, 686 S.W.2d 87, 92. The
defendants have failed to carry that burden.
Generally, the issue of reasonable care and diligence in discovery of an injury is a
question of fact for the jury. Gosnell v. Ashland Chemical Company, Inc., Tenn. App. 1984, 674
S.W.2d 737, 740.
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The first record of effective notice of false test result is the admission in the complaint
that the result of the second test was reported on June 6, 1995, which was less than one year prior
to the filing of the present suit.
The judgment of the Trial Court is reversed and vacated. The cause is remanded to the
Trial Court for further proceedings. Costs of this appeal are taxed against the defendants.
REVERSED, VACATED AND REMANDED.
___________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
__________________________
SAMUEL L. LEWIS, JUDGE
__________________________
BEN H. CANTRELL, JUDGE
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