# FILED
November 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: November 16, 1998 MICHELLE CREIGHT ON TERRY, ) ) Appellee, ) DAVIDSON CIRCUI T ) ) Vs. ) ) HON. HAMILTON V. GAYD EN, JR., ) JUDGE GARY D. NIBLACK, M.D . and ) LABORATORY INVESTMENTS, ) INC., D/B/A GENE PROOF ) TECHNOLOGIES, ) ) No. 01-S-01-9709-CV-00180 Appellants. )

For Appellant

s: For Appellee: Michael M. Castellarin Carol L. Soloman MOODY, WHITFIELD & L. R. DeMarco CASTELLARIN Nashville, Tennessee Nashville, Tennessee



## O P I N I O N

COURT OF APPEALS AFFIRME D ANDERSON, C.J.1 Tenn . Code A nn. § 29- 26-116 (1980). -2- We granted this appeal to determine when th e one-year statute of limitations 1 commenced for the plaintiff to f ile her suit alleging that the defendants negligently performed an inaccurate paternity blood test, which ex

cluded from paternity the natur al father of her child. The trial c ourt dismissed the suit beca use it was not filed w ithin one year of when the plaintiff learned the results of the blo od test. The Court of Appeals
revers ed, concluding

that the statute did not c

ommence u ntil th e date th e plaintiff learned the results of a second bl ood test that differed from the first blood test.

After our revie w of the record

and appl icable authority, we agree that the p laintiff could not reasonably hav e discovered the exis

tence of a legal cause of action until she learned the results of the second blood test. Because the suit w as filed within one year of the date the cause of action accrued, we therefore affirm the Court of Appeals’ judgment that the suit was filed within the statute of limitations.

BACKGROUND On February 9, 1994, the pl aintiff, Michelle Creig hton Terry, filed a petition with the Davidson County J uvenile Court alleg ing that James Michael H ayner was the father of her child. The petition asser ted: Petitioner and Respondent engaged in sexual intercour se; however, they w

ere not married. Petitioner would further state that Respondent is the onl y person with w

hom she had sexual relations w

ith prior to, during and after the conception of the minor child. Petitioner would state that she and Respondent had sexual inter course during her fertil e period and Respondent is the father of the un born child, who is a baby girl. The unborn c hild was conceived in May or June, 1993, and is due to be born in mid- February, 1994. A blood test was performed by the defendants, Dr. Gary Niblack and Laborat ory Investments, Inc., d/b/a Gene Pr oof Technologies, and a report w as made on May 6, 1994. The blood test results ex cluded Hayner as the father.2 The defe nda nt’s m otion was pred icate d on T enn . R. C iv. P. 1 2.02 and 5 6.02 . The trial co urt’s order of di smissal did not specifi cally

state whi ch rule th e dismissal was based up on. The Court of App eals dete rm ined t hat b eca use the m otion was acc om pan ied w ith evid entia ry ma terials and a ffida vits, it was properly

treated as a

summary judgment pursuant to Tenn. R. Civ. P. 56.02.

-3- The plaintiff moved, and the juveni le court ordered, that a sec ond blood test be performed by an independent laborato ry. The results of this t est were reported on June 6, 1995, and revealed a 99.5 percent probability that Hayner was the father. The juvenile court held a hea ring on October 11, 1995, to determine which of the two tests was correct. After hearing the defendants’ employee testify that an error was made in the original test and that the defendants had con cealed the error, the juvenile court found that the second test was correct and that Hayner was the father.
On April 2, 1996, the plainti ff filed this complaint alleging that the defendants were negligent in

conducting the erroneous bl ood test. The defendants moved to dismiss the suit on the gr ounds that it was not filed w ithin one year of May 6,1994, i.e., the date the plaintiff learned the res ults of the first blood test. The defendants argued that the plaintiff should have known that the first test was erroneou s for two reasons: first, the plaintiff had alleged in her petition to establis h paternity that she had only had sexual relations w

ith Hayner; and second, the plaintiff had alleged in her moti on to conduct a second blood test that defend ant Niblack had told her attorney that “there had been a problem” with the initial test. The trial court dismissed the plaintiff’s suit.
On appeal , the Cou rt of Appeals, tr eating the tri al cour

t’s rul ing as a

grant o f a summary judgment, 2 concluded that a genuine and mater ial issue existed w

ith regard to the plaintiff’s discovery of the legal action and that the suit had been filed within the statute of limitations. The appell ate court stated that the plaintiff’s assertions regardi ng her sexual history with Hayner and the conception of the child did not constitute notice of a false blood test “absent exper t evidence of the relevant physical and natural r ules and evidence that such rules are matters of public knowledge.” The appe llate court further stated that notice of a “problem” with the blood te st was not sufficient to inform the plaintiff that the result w as erroneous. Thus, the appellat e court concluded that “the-4-

first record of effective notice of a fa lse test result was the admission in the [plaintiff’s] complaint that the result of the s econd test was reported on June 6, 1995, which was less than one year prior to the filing of the present sui t.”
We granted the defendants’ application for permiss ion to appeal.

ANAL YSIS We begin our analysis by summarizing the standards applicable to sum mary judgment. A summary judg ment is appropriate only if the moving party sh ows that no genuine and material factual is sue exists and he or she i s entitled to relief as a matter of law. In ruling on the motion, the court must consider the evidence in a light most favorable to the non-moving party and must allow all reasonable inferences in his or her favor. A summary judgment may be proper, therefore, only “when there is no dis pute over the evidence establishing the facts that control the application of a rule of law.” Byrd v. Hall , 847 S.W.2d 208, 214-15 (Tenn. 1993); see Tenn. R. Civ. P. 56.
The parties recognize that the one-year statute of li mitations begins to run w hen a plainti ff disco vers, or in t he exercis e of reas onable c are and d iligence, should ha ve discovered, the exis

tence of a legal cause of action. Teeters v. Currey , 518 S.W.2d 512, 517 (Tenn. 1974) (adopting “ discovery rule”

); see Hoffman v. Hospital Affiliates, Inc. , 652 S.W .2d 341, 342-4 3 (Tenn. 1983 ) (following Teeters ). This so-called “discovery rul e” prevents the anomaly of requiring that a plai ntiff file suit “prior to knowledg e of his injur

y or . . . that he sue to v indicate a n on-existe nt wrong,at a time when injury is unknown and unknowable.” Teeters , 518 S.W .2d at 51 5. As we have explained: [A] cause of action in tort does not accrue until a judici al

remedy is available.A judicial remedy i s available when (1 ) a breach of a legally r

ecognized duty ow

ed to plaintiff by defendant (2) causes plaintiff legal ly cognizable damag e. A breach o f a legal ly cog nizabl e duty occurs w hen plai ntiff discovers or ‘reas

onably should have disc overed, (1) the occasion, the manner and means by which a breach of duty-5- occurred that produced . . . injury; and (2) the i dentity of the defendant who breached the duty.’ Wyatt v. A-Best, Co. , 910 S.W.2d 851, 855 (Tenn. 1995) (citations omitte d).

We further stated in Carvell v. Bottoms , 900 S.W.2d 23 (Tenn . 1995): It is not required that the plaintiff actually know that the injury constitutes a breach of the appropriate legal standard in order to discover that he has a right of action; the plaintiff is deemed to have discovered the right of action if he is aware of facts sufficient to put a reasonable per son on notice that he has suffered an injury as a r esult of wrongful conduct.

Id . at 29 (quoting Roe v. Jefferson , 875 S.W.2d 653, 65 7 (Tenn. 1994)).
The parties in this case dispute when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, that the def endants negligently performed the erroneous blood test. The defendants contend that the statute of limitati ons began to run on M ay 6, 1994 , becaus e the pla intiff should re asonabl y have discovered the cause of acti on upon learning the result s of the first blood test. The plaintiff argues that the statute did not run until Octob er 11, 1995, the date the juvenile court determined that the second t est was correct.
Like the Court of Appeals, w e conclude that the statute of limitations did not
commence

when th e results of the first bl ood test were r eported . Althou gh the p laintiff certainly had knowl edge as to the conception of the chi ld and her sexual relati ons with Hayner, such knowl edge was not sufficient notic e that the first blood test w as negligently performed s o that a cause of action exist ed. Miller v. Niblack , 942 S.W.2d 533, 540 (Ten n. App. 1996) (re jecting similar con tention). Moreo ver, such knowledge was not sufficient notice for the plaintiff to have reasonably discovered that the defendants negligently per formed the first blood test and that a l egal cause of action existed. See Wyatt , 910 S.W.2d at 855 (stating that “legal ly cognizable damag es occur3 Although we sha re the Co urt of App eals’ con clusion in th is regard , we disag ree with its statement that

the plai ntiff ’s knowledge of the date of conception and he r sexual hi story with the fat her of the chil d required exp ert test imony as to t he relevant “natural

and physical

rules.” In our vi ew, such a requ irem ent w ould b e inco nsis tent g iven th at lay te stim ony re gard ing th e tim ing of conc eptio n is ge nera lly adm issible in a pa ternity suit. See , e.g. , Tindle v. Gay , 891 S.W .2d 617 ( Tenn . App. 199 4); Rooker v. Rimer , 776 S.W .2d 124 ( Tenn . App. 198 9), cert

. denied 493 U.S. 1073, 11 0 S. Ct. 1120, 107 L. Ed. 2d 1027 (1990). -6- when plaintiff discovers facts which would sup port an action for tort agai nst the tortfeasor”) (citation omitted). 3
Similarly, we disagree with the defendants’ contention that the plaintiff should reasonably have disco

vered the cause of action w hen her attorney was al legedly told by Dr. Niblack that there had been a “problem” with the first blood test. As the C ourt of Appeals concluded, this informati on did not reflect on the accurac y or inaccuracy of the blood test, or whether the defendants had been negligent in performing the test. It may have been, and in fact was, s ufficient to require the plai ntiff to use due diligence to discover whether there had been an error and also whether facts existed t o support a legal cause of action. See , e.g. , Wyatt , 910 S.W .2d at 85 6 (“altho ugh the te ntative diagnosis did not commence the running of the statute , it did trigger a duty on plaintiff’s part to determine, with due diligence, whether he did, in fact, have that dis ease”). Yet, as the intermediate court sai d, it did not begin the runni ng of the statute of limitations.
Accordingly, w

e conclude that the statute of limitations did not begin to ru n on the day the plaintiff learned of the fir st blood test. Although the plaintiff contends that the statute did not commence until her actual discovery that the fir st blood test was erroneous, i.e., when the juvenile court determin ed the second test was cor rect on October 11, 1995 , we ag ree with the Co urt of Ap peals’ determi nation t hat the p laintiff should reasonably have discovered the exis tence of this cause of action on June 6, 1995, the date she learned the resul ts of the second blood test that ther e was a 99.5 percent prob

ability that Hayner

was the fath er. In eithe r case, the o utcome is the same because the suit was filed o n April 2, 1996, which w as within one year of ei ther date.-7- CONCLUSION After reviewing the record and authority, we agree with the Court of Appeals that the plaintiff did not know, nor reasonably could have discovered in the exe rcise of due diligence, the exist

ence of a legal cause of action unti l the results of the second blood test were reported. Ac cordingly, we a

ffirm the Court of Appeals’ judgment that the plaintiff’s suit was not bar red by the statute of limitati ons, and the case is remanded to the trial court for further proceedings. Costs of appeal are taxed to th e defendants.

________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, and Holder, JJ. Reid, not participating