# FILED
October 9, 199 6 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) MELANIE M ILLER, individua lly and ) Shelby County Circuit Court as Next F riend for A SHLEY MILLER ) No. 54181 T.D. LUNA, a minor, and Next Friend of ) GREGORY LUNA, deceased , ) ) Plaintiff

s/Appella nts. )

) VS. ) C. A. NO. 02A01-9505-CV-00101 ) GARY D. NIBLACK, M.D., ) LABORATORY INVESTMENTS, INC. , ) and REN LABORATORIES, INC. ) d/b/a REN HISTO COMPA TIBILITY ) LABORATORY , A Joint Ve nture, and ) JOHN DOE , ) ) Defend ants/Appe

llees. )

)

______________________________________________________________________________ From the Circuit Cou

rt of Shel by C ounty

at Memphis
. Honorable W

illiam O’ Hearn, Judge by Designation
Lynd a F. Tee ms , Memphis, Tennessee Attorney for Plain tiffs/App ellants.

J. Cecil McWhirter , Memphis, Tennessee Sally F. Barron , Memphis, Tennessee Attorneys for D efendant/Appellee, L aboratory Investments, I

nc. James E. Moffitt, Reid D. Leitner , LEI TNER, WARNE

R, MOFFI

TT, WI LL IAMS, DOOL

EY, CARPEN

TER & NAPOLI

TAN, Nashville, Tennessee Attorneys for D efendnat/Appellee, Ren L aboratories, Inc.
OPINI ON FIL

ED: REVERSED IN

PART, A FFIR

MED IN P

ART AND R

EMANDED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) LILLARD, J. : (Concur s)1 The test results, signed by Dr. Niblack, state that “[Luna] can not be e xcluded as the father of Ashley

Miller. Th

e combined patern

ity i ndex (ge netic odd s in favor

of pater nity ) is 21.38. The relative chance of pater nity is 95.53%.”
2 At this time, the business actually operated under the name Gene Proof Technologies. Dr. Niblack remained its director.

This is an action for negligence in the conducting of a paternity test. The trial court ente red summary judgme

nt in favor of the appellees, Gary D. Niblack, M.D., Laborator y Inve stments, Inc. and Ren L aboratories, Inc. d/b/a Ren H istocompatibility La

boratory, a

joint venture, and John Doe. The appe llants, Me lanie Miller, individually and as next friend for Ashley Miller Luna, a minor, and next friend of Gregory Luna, deceased, have appealed pre senting the single issue of whether the trial court er red in doing so. For reasons hereinafte r set forth, we affirm in part a nd rever se in par

t the judgment of the

trial cou rt.

On October

30, 1990, M elanie

Miller gave birth to a baby girl, Ashley . On May 22, 1991, Ms. Miller filed a petition to establish paternity ag ainst Gregory Luna in juvenile court. The court, “upon moti on of the s tate,” o rdered the part ies to submi

t to blood te sts. A pate

rnity blood test
was performed by

Ren Histocomp atibility

Labo ratory (RHL), wher

e Dr. Nib lack is e

mployed as its director. RHL pr

ovided the se servi ces purs uant to its c ontract with the juvenile c ourt of Me mphis and Shel by County . The results of the test, which excluded Luna a s the natural father of Ashl ey , were submitted to the court who dismissed the petition on June 4, 1991, “due to [Luna] having been excluded by blood tests.” Luna died on Februa ry 18, 1992. On June 16, 1992, Miller filed a petition to establish the paternity of A shley against Randall Carter in the juvenile court. The court ordered the parties to submit to blood tests which were once again perf ormed by RHL . The tests excluded Carter as the father. The results of the tests were rele ased to the juvenile court by letter dat e d September 9, 1992. The court dismissed Miller’s petition on September 15, 1992.

On February

1, 1993, Miller filed a “Motion f or Rel ief from Judgment,” asserting that
on September 27, 1992, she discovered the results of a blood test repe ated on he rself and the chil d indicating that there was a “mix-up” on the earlier test results and that L una was in fac t A sh le y’ s father. 1 Blood tests were then performed by

RHL 2 on Ms. Mille

r and Ash ley and on L una’s pa rents, to co nfirm the accuracy

of Luna’s prior blood data. Af ter a hearing which reve aled the ne w tes t results, the trial court found Luna the natura l father of Ashley and orde

red its prior judgment of June3 The complaint inadvertently reads “1993.”
4 Specific ally , these a

re the de positions o f Miller, Luna ’s pare nts, Donna

Stoker, L aurie Austin and Pamela Medkiff. 4, 1991 “set aside as having been based upon an incorr ect testing result.” The court ordered that the
surname of the child be changed to L una an d that she be considered legitimate for purposes of inherita nce and support.

On June 2, 1993, Appellants filed the present action alleging that Appellee s deviated from the recognized stan dard of c are in failing to properly test the blood products and report the actual paternity of the c

hild. Appellants alleged

that Miller learned

the test results excluding Luna
as the fathe r of Ashley we re erroneous on September 9, 1992. 3 Appellees denied all material allegations and movedfor summary judg ment or, in the alternative, for partial s ummary

judgmen t, asserting that the complaint was bar red by the doctr ine of jud icial immun

ity, the public

duty doctrine and the applicable one y ear statute of limitations. It was further asserted tha t Luna’s cause of

action abated upon his death; that Ashley L una lacked standing to sue as “next friend” of Luna; that Miller and Ashley L

una had suffered no actionable damag es; and, finally, that Appellants could not recover “hedonic” damages. I

n support thereof, Appellees reliedupon var ious depos itions, 4 the affidavit of Wendy Durand and Appel lants ’ responses to interrogatories and requests for production of document s. Appellan

ts responded to the motion by filing a memorandum wherein it was argue d that “there are nume

rous i ssues of mat erial fact involved in this record . . . .” However , no discovery mater ials wer e specifically introduced or expressly re lied upon by Appellants in opposing the motion.

It

is well es tablished

that the party see

king summary judg

ment bears the burden of persuading the cour

t that no g enuine a

nd mater ial fact ual issue s exist

and it is, th

erefor e, entitled to judgment as a matter of law. See, e.g., Byrd v. Hall , 84 7 S .W .2d 208 , 21 1 (T enn . 19 93) . In reviewing motions for

summary judgmen t, we are to view the

evidenc e in a lig

ht most fav orable t

o the nonmoving party, a llow a ll rea sonable inferen ces in tha

t party ’s favor

and disca

rd all countervailing evidence. It is only whe n there is no disputed issue of material fact that summary judgment should be g ranted by the trial court and sustained by the court of appeals. Byrd , 847 S.W.2d at 21 0-11; Fly v. Cannon , 813 S.W.2d 458, 460 (Tenn. App. 1991).5 For clarity , any future reference to “Appellants” throug hout this opinion will be in regard to Miller and Ashley L

una. The trial cou

rt’s orde r gran ting summa

ry judgmen t in favor of

the appe llees fa ils to set forth its specific reason(s) for doing so. The refore, we will consider each assertion raised by the appellees in their motion. We fir st consider whether Luna ’s cause

of actio n abated

upon his death. T.C.A. § 20 -5-102 pr

ovides:

Actions surviving death of party . -- No c iv il action commenced, whether f ound ed on w rongs o r cont racts , exc ept act ions for wro ngs affec ti ng the character of the plaintiff, shall abate by the death of either party , but may

be reviv ed; nor sh all any rig ht of action arising hereafter based on the wrongful act or omission of ano ther, except actions for wrongs affecting the character, be

abated by the

death of the party wronged; but the r

ight of a ction sha ll pass in like manner as the right of action described in § 20-5-106.
T.C.A. § 20 -5-106 st

ates, in p art per

tinent:
Injury resulting in death -- Succession t o cause of action -- Beneficiary who is minor o r l egally incompetent. -- (a) The right of act ion which a person, who dies from injuries received fr om another, or whose death is caused by the wr ong ful act, omission, or killing by another, would ha ve had against the wrongdoe r, in c ase death had not ensued , s hall not abate or be extinguished by the person’s death but

shall pas s to the person’s surviving spouse and, in case ther

e is no surviving spouse, to the person’s children or next of kin ; (emphasis added).

The record establishes that Luna is survived

by hi s s pou se, Aud rey C ook Luna . In accordance with the foreg oing statutes, we find that if any action exists on behalf of the deceased, it is proper ly ma intained only by h is surviving spouse. As such is not the case here, we find that the suit pursued on behalf o f Lun a by his daug hter Ashl ey

as “next f riend”s hould

be dismissed. We hold that summary judgme

nt was properly g

ranted to the appellees as to this cause of action. 5

We next cons ider the

assertio n that the

present claims are barred

by the doctrine of judicial immunity. It is contended that Appellees ar e the duly authorized ag ents of the juvenile court and are ent itled to judicial immunity from liability for their acts as judicial officers under the direction of the juvenile court.The doctrine of absolute judicial immunity, which first arose under common law, has been exte nded t o pers ons, o ther t han ju dge s, perfor ming judi cial or q

uasi judic ial func tions. LaLonde v. Eissner , 539 N.E.2 d 538, 540 ( Mass. 1989 ); Howard v. D rapkin , 271 Cal. Rptr. 893, 901 (Cal. Ct. Ap p. 1990); Harris v. Brustowicz , 67 1 S o.2 d 44 0, 4 43 ( La. C t. App . 19 95) . In LaLonde , a mother and

child brought suit

agains t a court appointed psyc

hiatrist to recover for the allegedly negligent evaluation render ed by the do ctor to the c ourt, causing a continuation of the father’s visitation privileges. LaLonde , 539 N.E.2d 538. The psychia trist argued that he was entitled to quasi judicial immunity because he ha d been court appo inted. Id . at 539. The Massach usetts Supreme Court

agreed and affirme d the trial judg e’s ruling, aff ording t he psy chiatris t absolute judicial immunity. Id . The court reasoned:

Courts have expandedthe doctr ine of ab solute jud

icial immun

ity t o include these “quasi judicial” officers because they are involved in an integral part of the judicial process and thus must be ab le to act f

reely withoutthe thre at of a la

w suit. Robichaud

v. Ronan , 351 F.2d 533, 535-538 (9th Cir. 1 965). When acting at a judg e’s direction, the se “quasi judicial” officers enjoy the same abs olute immun

ity f or their conduct. Temple v. M

arlborough D

iv. of the Dist. Co urtDep’t, supra , 395 Mass. at 133, 479 N.E.2d 137 (court clerk).

. . . . Most jurisd

ictions ha ve held that commo n law immun

ity protect s persons appointed by a court to conduct a medicalo r psy chiatric

evaluation and r en der an opinion or to provide other expertassistanc e becau se of the ir integ ral rela tion to th e judicial process . See, e. g., Moses v. Parwatikar , 813 F.2d 891, 892 ( 8th Cir.), cert. denied. ____ U.S. _

_ __, 108 S.Ct. 108, 98 L.Ed.2d 67 (1987) psy chiatris t); Myers v. Morris , 810 F.2d 1437, 1467 (8th Cir.), c ert. denied, ___ U.S. ___, 108 S.Ct. 97, 98 L.Ed.2d 5 8 (1987 ) (thera pists in child sexual abuse ca se); Burk es v. Calli on, supra at 319 (psychiatris ts ) ; Bartlett v. Weimer , 268 F.2d 860, 862 (7th Cir. 1959), cert. de

nied, 361 U.S. 938, 80 S.Ct. 380, 4 L.Ed.2d 358 (1960) (physicians); Will

iams v. Rappep ort , 699 F.Supp. 501, 507-508 (D.Md.1988) (p syc hiatrist and psychologist appointed during custody determinat ion); Miner v. Baker , 638 F.Supp. 239, 241 (E.D.Mo. 1986) (psychiatrist); Doe v. He nnepin County , 623 F.Supp. 982, 986 (D.Minn.1985) (thera

pists in chi ld sexual a

buse cas e); Phillip s v . Singletary , 350 F.Supp. 297, 300 (D.S.C.1972) (physician); Bartlett v. Duty , 174 F.Supp. 94, 97-98 (N.D.Ohio 1959) (phy sician). These courts recog nized th at “[p]sychologists and other experts would be reluctant to ac ce pt co ur t a pp oi nt me nt if th ey t he re by open ed themselves to liability for their actions in this official capacity .” Doe v. Hennepin Count

y, supra at 9 86. Moses v. P arwatikar, s upra at 892. Also, human nature ind icates that c ourt-appointed experts, faced withthe thre at of per sonal li abil ity, will be less likely to offer the disinterested objective opinion that the court seeks. Id
.
Id . at 540-41.In H oward v. Drap kin , a child custody ca se, the court held that a psy chologist ordered by the cou rt to evalua te the fa mily and rend er her f indings a nd recom mendatio ns was en

titled to absolute quasi judicial immunity

in a suit by

the pare nts alleging, inter alia , professional negligence. Howard , 271 Cal. Rptr. at 895, 905. Howard held that in order to determine whether an individual has quasi judicial immunity, the connection betwee n that person’s activity a

nd the judicial process is to be evaluated, rather than the status of the individual. Id
. at 898. The court further held that as is the reasonforgranting judic ial immunity , quasi jud icial immun

ity i s extended

“to promo te uninhibited and independent decision making.” Id
.

A different result was reached by th e Lo uisiana Court of Appeals in Harris v. Brustowicz
. There, parents filed suit against the corone r and coroner’s office for the alleged wrongful death of

their son in failing to issue anorder of protective custody after agreeing

to do so. Harris , 671 So.2d a

t 440-42. T

he issue b efore t

he court was whet her the d efenda nts were entitled to judicial immunity. Id . at 441. I n holding the defe ndants subject to liability for their alleg ed actions, the court stated:

Under the doctrine of judicial immuni ty, a judge is entitle d to absolute immunity

from liab ility

for act s he perf

orms in his judicial role which are integral to the judicial proc ess. . . .

. . . . The Supreme Court [in Forrester v. White , 484 U.S. 219, 225 (198 8)], held that immunity was “justified and define d by the functions it pr ot ec ts an d s er ve s, no t b y t he person to whom it attaches.” . . . I

n this cont

ext, the Cour

t drew a d istin cti on between judicial acts and administrative or executive acts, noting that the latter have notbeen recognized as judicial acts warranting immunity, even thou gh essential to the functioning of the court s. . . . F urther, the Courtindi cated re cogniti on of such immunity

should be s paring , in view of the fact that absolute immunity is “ strong medicine.” . . . Neverth eless, quasi-judicial immunity has been extended i n someinstances to nonjudicial persons fulfilling quas i -judicial functions intimately related to the judicial proc ess. . . . The determinative factor is whether the pe rson pe rforms a judicial function with an integral relationship to the judicial process. . . . In the pres ent case , plaintif fs do not c omplain of

the exerc ise of the coroner’s judgment resulting in a decision to deny the requ est for a protective orde

r. Rather , the basi s of plain ti ffs’ c laims is the allegationthat the coroner failed to personally revie

w the request for protective order and make an y de cisi on thereon, failed to provide adequa te procedures for the handling of such r

equests b y a

welltrainedstaff, f

ailed to su pervise his staff , and delegated r

esponsibi lityfor the handling of such requests to unqualified, nonmedical personne l. In the alternative, plaintiffs conte nd t he corner’s office was negligent and acted in bad fa ith in failing to expeditiously take Rogowski into custody after a greeing to do so. We find that the alleged acts and omi ssions a

re not judicial functions integral to the judicial pr oc es s, bu t a re pr im ar il y admini strative, executive and/or operational in nature.

Id . at 442-43 (citations omitted).

In the instant ma

tter, the affida vit of Wend

y D urand sta

tes, as he re pert inent:

On January 16, 1991, the Memphis Juvenile Court and Shelby County entere d into a co ntract f

or servi ces with R

EN La borator ies, also known as R

EN Histoc ompatibility . . . . Under this contr

act, REN Histocompatibility was to provide all paternity blood testing for th e Mem phis Juvenile Court. In May -June, 1991, REN Histoc ompat ibility

performed for the Memphis Juvenile Court approxima

tely 50 sets of blood tests per week. The blood samples from the testee was [sic] drawn at the Memphis Juvenile Courthouse, an d trans ported to Nashville, Tennessee for testing at the REN Histocomp atibility

Laboratory . REN furnishedits test results to the Juvenile Cou

rt in the f orm of a w

ritten re port. On April 16, 1991, [Miller] brought against [Luna] a Petition withthe [Cour

t] t o establis h the pate

rnity of her da ughter , . . . At a preliminary

hearing . . . Juvenile court Referee . . . o rdered . . . that upon motion of

the State all parties submit to blood tests administered by t he Memphi s Juvenile Co

urt.

The cont ract, a ttached to Duran d’s aff

idavit, ind

icates:

The Lab will perform testing on Red B lood Cell Antigens (RBC) on all individuals referred for testing. If upon

completion of testing of RBC, there is a direct exclusion or mu ltiple indirect exclusions , unless oth

erwise instructed, the Lab will di scontinue testing
. Howeve

r, in cas e where

the spec imens fro m the par tie s d o notarrive in the Lab on the

same day, the L

ab will perform RBC and Human Leukocy

te Antigen (HLA) procedures on all partial c ases submitted. If u pon comp letion of RBC, there is no direct exclusion or mult iple i ndire ct ex clusi ons, t he Lab wil l perf orm HLA t estin g. If upon completion of RBC and/or HLA, the proba bility of paternity is less than 99%, the Lab will extend testing using ser um proteins , red cell enzy

mes and/o r DNA Pro

be. I f, afte r perfo rming a ll testi ng, the proba

bility of pater nity is less tha

n 99%, the

re will be no charge for any

services provided.We find the contract between RHL and the Juvenile Cou

rt exact in its require

ments of RHL in performing the blood tests. There is no room for discretion as to the ty pe of tests to be pe rformed or the order in which the

y a re condu cted. Mor

eover, t he test re sults are

not subject to different interpretation. They either e xclude the

alleged father

or do not. This is directly opposite to the afor

ementioned case s concer

ning psy cholog ists or psychiat

rists who were appointed by the court to conduct an “evaluation.” Here, the tasks of RHL did not lend themselves to “uninhibited and independent decision making.”

We believ e the fa

cts of our case are more closely

aligned to those in Harris . As in Harris , the appe

llants here do not question Appellees’ decision regar ding whe ther or how the tes ts
were to be condu cted. The appell ants alle ge negligenc e inthe appellees’ actual performanc e of the tests. “Imm

unity can only exist where th e defendant off

icial is r equired to exercis e some

modicum of official discretion . . . . since the ratio nale for

officia l [quasijudicial] immunity is the promotion of fearless, vigorous, or effec tive administration of polic ies of government, the qualification of immun ity which limits it to discretionary acts is eminently practical.” 63 Am. Jur. 2 d Publi c Office rs and Employees § 362 (1984). We conclude that the record before us does not establish that Appellees are entitled to judicial immunity a s a matter of law.

Appellees also assert

that the present action is barred under the public duty doctrine. They contend that they pe

rformed the subject blood tests as a public officer for the purposes of the public duty

doctrine . They

point to the fact , as found in Durand’s affidavit, that the tests were authorized and paid f

or by the juven

ile cour t and that all test r esults we re repo rted dir ect ly to the court. They

argue that as a public of ficer, their duty

was to the

public at large , not the a

ppellant s in particular.

The public dut y do ctrine sh

ields a pu blic employe e from suits f or injuries that are caused by the public employee’ s breach of a duty owed to the public a t large. Ezell v. Co ckrell , 902 S.W.2d 394 , 397 (Tenn . 1995). Ezell recognized that the doctrine survived enactment of Tennessee’s Governmental Tort Liability Act and that sound public policy wa rrants its continued application. Ezell , 902 S.W.2d at 404. In Bennett v. Stutts , 521 S.W.2d 575 (Tenn. 1975), our supreme court held:Public wrongs or neglect or bre ach of public duty g enerally c annot be redressed at a suit in the name of anindividua l or individ

uals whos e interest in the right asserted

does not diffe

r from tha

t of the pu

blic ge ne ra ll y, or who suf

fers inju ry only in common with th em ge ne ra ll y, and not peculiar

to himself, even, it seems, though his loss is greater in degree, unless such right of a ction is given by statute.

Bennett , 521 S.W.2d at 577 (quoting 59 Am. Jur. 2d Parties § 30).

As its definition would imply, thedoctrine is subject to a “special-duty ” exception. The Ezell court held that a special duty of care exists, rendering the doctrine inapplica ble, where:
1) officials, by their a

ctions, affi r matively undertake to protect the plaintiff, and the plaintiff relies upon the undertaki ng; 2 ) a statut e specific ally

pro vide s for a cause of action aga inst an official or municipa lity for injur ies resulting to a

particular clas s of

individua ls, of which the plaintiff is a member, from failure to en force c ertain laws; or 3) the

plaintiff allege s a cause of

action in volving intent, malice, o r reckl ess misconduct.

Ezell , 902 S.W.2d at 402.

In his deposition, Dr. Niblack attempts to explain the different test results by stating that the samples were “switched from one report to the other, so that the mother’s report is listed as the child’s report and viceversa.” We believe there was an affirmative under taking by A

ppellees to accura tely record theblood tests of Appellants and that Appellants were justified in rely ing upon Appellees to do so. Appellants do not question the manner in which the lab g enerally p erformsits tests or the specific procedures utilized or followed , but their

alleged neglig ence in

“switching” the specific test results of Appe

llants. The injury involved here is peculiar to Appellants. We conclude that the record fails to establish the a ppell ees’ en

titlement t

o immunity

from suit u

nder the public duty doctrine.
Appellees next assert that the present action is barred by the one-ye ar statute of limitations
. T.C.A. § 28-3-104 provides that actions fo r “injuri e s to the person” are to be commenced within one y ear after the cause of action

accrue s. Under

the disco very

rule, the cause of action accrues and the statute of limitations begins to run when the injury occur s or is discovered,or

when in the exercise of reasonable car e anddilig ence, it should have been discovered. E.g., Woods v. Sherwin-Williams Co. , 666 S.W.2d 77, 78 (Tenn. App. 1983). The rule applies only w hen the plaintiff does not discover and could not be reasonably expected to discover that he has a right of action. I

t does not a

llow the pl aintif

f to wait u ntil he knows all of the injurious effects or consequences of the tortious act. Moreover, the statute is tolled only during the perio d when the pl aintiff has no knowledge at all that a wrong has occurred and, as a rea sonable person, is not pu t on inquiry. Woods , 666 S.W.2d at 80.

Appellees argue

that Miller had either actual knowledge or w as put on inquiry notice of her alleged injuries on June 4, 1991 - the day her petition ag ainst Luna was dismissed by the juvenile court. The record establishes that during the critical time period, Miller had sexual relations with only Luna and Carter. She had sexual intercourse with Carter only one time on February

26, 1990. The child

was not born prematurely . In her deposition, Miller states that she believed herself pregnant prior to having sex with Carter. She said that her pregna ncy was c onfirmedin March 1990 and that she informed Luna of this the following mon th b ecause she believed him the father. Appellees assert that

because Miller had sexual relations with Carter approximately 8 months before the child’s birth, a reasonable person should have known or conc luded that Carter could not be the natural father.

Miller’s depo sition also states that although she suspected pregnancy prior to relation s withCarter, she thoug

ht her sy mptoms “co

uldbe due to nerves.” Miller stated that she first saw the test results excl u ding L

una as the

child’s f ather in court on o

r about June

4, 1991. Whe

n asked if she felt the r

esults w ere wrong, she replied “I didn’t know” a nd “I thought it probably

was.” She further told the referee that she believed the re sults were in error. When asked, “after you knew the blood test had excluded [Luna], then y ou knew [Carter] was the father, didn’t y ou?”, she replied “[y]es . . . I

thought [Carter] would be.” She further declared:

A. When t he blood te st came b ack and said [L una] was n ot, I thought, well, it has to be Randall Carter. Q.
. . . was there a logical certainty to that or w as there any doubt left in your mind?A. I was rea l unsure a bout it tobegin with. I talked to my mother about it atlength. She broug

ht up seve

ral medic al case s, pregnancy upon pregnancy , that made me think that it was prob ab ly R andall Carter’ s.

. . . . A.
. . . . Obviously , if it wasn’t [Luna], it was Randall Carter. .

. . Q.
. . . . How many day s after the court hearing wa s it that you became sure that it was Randall Carter? A. I ca ll ed Ra nd al l C ar te r t ha t d ay.

. . . . Q.
. . . . Was there any doubt left in your mind that Greg Luna . . . might have been the father? A. I don’t know. Q. You don’t know if he might havebeen the father or y ou don’t know if there is any

doubt in your mind? A. I thought that Randall Carter wa s the father.

Miller said that she did not consider “informal retesting” afte r getting the results on June 4 becau se she “was told the test was ninety -nine pe rcent a ccurat e” and sh e “expec ted the te st to be done correctly .” Miller stated that as soon as she received the second test re sults (involving Carter) she knew that a mistake had been made, but that “[y]ou have to have the sec ond test to be able to compar

e.” As he retofor e noted, t he second set of bl ood tests were concluded on September 9, 1992 and Miller’s petition as to Carter was dismissed on September 15, 1992. Based upon our review of the record, we find that Appellees have fa iled to carry

the burden of persuading this Court that the one-ye ar statute of limitations has run in this case as a matter of law.

Appellees also arg

ue that Miller and t

he child have suf fered n o actiona

ble dama ges. The complaint alleges as damages “mental anguish, loss of sup port, lossof socia

l securit y be nefits, and loss of enjoyment of

life.” According to her deposition, Miller incurre d approximately $8,000 in medical expenses r

elated to the birth of her child, for which she was never r eimbursed. We reject Appellee s’ contention that the record establishes that L una would have been

unwilling

or unable to pay, there by render ing these damages too speculative. B ased upo n the rec ord, we c annot find as a matter of law that these ty pe damages are too speculative to pe rmit recovery
.We further cannot find thealleged damages sustained by Ashley

Luna, in the form of child support, too speculative to permit recovery as a matter of law. The record re veals that Luna
was employed by

CSX Servic es from A

ugust 12, 1991 to January 3, 1992, when he wa s laid off due to lack of work. He earned $9 an hour as a full time employee. Had the first paternity test revealed Luna as Ashley ’s natur

al fathe r, he would have been obligated to and ordered to provide support for his child in accordance with the child support guidelines. It appears that he would h ave bee

n capab le of do in g s o a t l ea st du ri ng th e p er io d o f h is em pl oy.

Miller state s that altho ugh her daughter currently receives socialsecurity bene fits as
a result of her father’s death, in the amount of $573 per month, Ashley has not rece ived benefits for the six month peri od immedia tely preced ing his de ath. She a sserts tha t the Socia

l Security Administration will only pay up to six monthsback pa y f rom the tim

e of filing the pe

titio n fo r benefit s. She first a

pplied fo r benef its on beha

lf of her daught er in April 1993. Appellees contend that the proxima

te cause of Ashley ’s being

deprive d of appr

oximately six months of

benefits is her mother’s failure to timely establish pater nity, which ac cording to Appellees, she could have done ha d she obtained rete sting. Th is is an ar gument p roperly address ed to the t

rier of f act.

As to the alleged da

mages o f “menta

l anguis h,” it app ears tha t Appella nts ar e asserting a claim for negligent infliction of emo ti ona l d is tre ss . In Camper v. Minor , 915 S.W.2d 437 (Tenn. 1996), our supreme court abandoned the “physical manife station” or “injury” r ule, holding that such would “no long er be used to test the validity of a prima fa cie case of neglige

nt infliction of emotional distress.” Camper , 915 S.W.2d at 446. The court continued:

[W]e conclude that

these cases should be analyzed under the general negligence approa

ch . . .
. In other words, the plaintiff must present mater ial evidence as to each of the five ele ments of gener a l negligence

-- duty, brea

ch of duty, injury

or loss, ca usation in

fact, and proximate, or legal, cause, . . . in orde r to a void summary judgmen t. Furthermore, we

agree that in ord

er to guard against trivial or fraudulent actions, the law ought to provide a rec over y only for “seriou s” or “severe ” emot ional injury. A “serious”or “severe” emotional injury occurs “ where a reasonable pe rson, normally const ituted, would be unable to adequately cope with the mental stress engendered by

the circumstances of the case.” F inally, we conclude that the claimed injury or impairme nt must be supported by expert medical or scientific proof.6 Appellan ts argu e that the se damag es rela te to Ashle

y L una’s los s of the pa

rent-child relationship. Camper , 915 S.W.2d at 446 (citations omitted).

In this case, Appellants have not presented, by

affidavit or otherwise, expert medical
or scientif ic proof regarding their a

lleged emotional injuries. Moreover, we find the record before us inadeq uate to e stablish

the serio usness or severity of injury which we

believe is required under Camper
. We, there

fore, ho ld the appellees were properly granted summary

judgment as to the claim for “mental anguish.”

Fi na ll y, it is asserted that Appellants are not entitled to recover hedoni c dama ges. Ap pellants have alleged a “loss of enjoy ment of life,” 6 which we treat as a request for he don i c damage s. With respect thereto, we find that summary judgme

nt was properly e

ntered in favor of the appelle es. In Spencer v. A-1 Crane Service, Inc. , 880 S.W.2d 938 (Tenn. 1994), our supreme court specific ally

held thes e damag es unrec overabl e in actions pursued under the wrongful death sta tutes. Spencer , 880 S.W.2d at 943. The Spencer court ac knowledg ed two “g eneral rationa les” in disallowing damages of this ty pe: first, they

do not fulfill the compensatory f unction of tort law; and second, valuing

the plea sures of

life is too speculative to form a basis for computingdamages. Id
. We believe these same rationales apply to the present action and warrant a den ial of recove ry of these damages.

It results that

the judgment of the trial court is rever sed in par

t and aff irmed in pa

rt, withthis cause remanded to the trial court for further proceedings herewi th con sistent. Costs are
assesse d equally

agains t the par

ties.

_______________________________

FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)______________________________

LI LL ARD, J. (Conc

urs)