# FILED March 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk MICHELLE CREIGHTON TERRY, ) ) Plaintiff/Appellant, ) ) Davidson County Circ uit ) No. 96C-1225 VS. ) ) Appeal No. ) 01A01-9609-CV-00447 GARY D.

NIBLACK , M.D. and ) LABORATORY INVESTMENTS, INC., ) d/b/a GENE P

ROOF TECH

NOLOGIES, )

) Defendants

/Appellees. ) IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM C IRCUIT COURT OF DA VIDSON COU NTY AT NASHVILL E, TENNESSEE HONORABL E HAMILTO N 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 PLAI

NTIFF/APPEL

LANT Michael M. Castellarin, #12015 Moody , Whitfield

& Castellarin 95 White Bridge Road Suite 509, Cavalier Building Nashville, TN 37205-1427 ATTORNEYS FOR DEFENDANTS/APPELL EES 

### REVERSED, VACATED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

MICHELLE CREIGHTON TERRY, ) ) Plaintiff/Appellant, ) ) Davidson County Circ uit ) No. 96C-1225 VS. ) ) Appeal No. ) 01A01-9609-CV-00447 GARY D.

NIBLACK , M.D. and ) LABORATORY INVESTMENTS, INC., ) d/b/a GENE P

ROOF TECH

NOLOGIES, )

) Defendants

/Appellees. )



### O P I N I O N The plaintiff

, Michelle

Creigh ton Terr y, h as appea

led from t

he dismissa

l of her s uit agains tthe defendants, Gary D. Niblack, M.D . and Labor atory I nvestments, Inc., d/b/a Gene Proof Technologies, for damage s resulting from an erroneous result or re port of resul tof a test for paternity, a

nd 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 support ed by evidentiary

matter which requires that the judgment be revie wed as a s ummar y judgment. T.R.C.P. Rule 12.02. The complaint, filed on April 2, 1996, stated: 4. On February

9, 1994, plaintiff

filed in th

e Juvenile Court a pa

ternity suit aga inst one James Mitchell Hayner. 5. By

agreement, the parties submitted blood samples to the defendants for testi ng. 6. On or about M a y 6 , 1994, defendants reported that the results of the test were negative as to Hay

ner.-3- 7. Thereafter

plaintiff protested to the defendant, Niblack, who assured he r of the accura cy of the te st result. 8. On May 29, 1995, on motion of plaintiff, the Juvenile Court ordered a

further test which ind icated 9 9.95% pro

bability of pater nity of Hay nes. 9. On October

11, 1995, a

n employ ee of defendant s testified to the Juvenile Court that a grievous error was committed in the first test and that de fen dants had

fail ed to notify plaintiff or the Court of the error. Defend ants’ “Motion to

Dismiss” st

ated tha t it was fil e d “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 plainti ff’s pe

tition to the

Juvenile Cou

rt motion f

or additional bl ood test, an order su st ai ni ng th e m ot io n, an d a n a ff id av it of a for me r a ss is ta nt di st ri ct at to rn ey. The order of dismissal does not state the ground upon which it was g ranted. On appea l, the pla intiff ins ists that the one-ye ar statute of limitations (T.C.A. § 29-26- 116) did not begin to until the “discovery of the injury.”
De fendan ts concede that this is the statutory r ule, but rely upon evidenc e of discovery more tha n one y ear bef ore suit w as filed. Plaintiff ’s petitio n to the Juve

nile 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 ha d 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 fer tile 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.-4- Defendant

argues t hat a re asona ble pe rson h aving p erson al kno wledge of the facts stated in the foregoing quotation would be i mmediately awa re that the result of the first test was incorrect. Defendants’ ci te no authority holding that the quoted la nguage of the petition cons titutes evidenc e of notic e of err or. Abse nt expert e

vidence of the re levant ph ysi cal a n d 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 e rror. 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 els e had ac cess to he r during the time th

e minor child was conceived. Further, Dr. Ga ry Niblack of

Gene Proof Technologies, where the initial test was conducted, inf ormed Movant’sattorne

y th at there

may have be en some pr

oblems with the test procedures during the time the initial blood was performed. This C ourt is unwilling to hold that a n admission

that “the re may have be en so m e problemswith the test” constituted notice that there was neglige nce in cond uctin g the test or inaccur acy in the re sult. Defend ants rely upon the doctr ine of judicial estoppel to deny tha t which h as been asserted in a former proceeding. The doctrine might estop plaintiff from denying

the truth of that which was asse

rted in the

former p roceed ing; but, in this c ase, the s ituation is not so simple. Defend ants seek to e stop plain tiff fro m deny

ing notic e of err

ors in the test because she asserted facts from which a reasonable per son would derive notice. Appellant does not deny knowledg e of the facts; she denies that the facts cons titute d notice to a reasonable person.-5- Fi na ll y, defendants argue that plaintiff’s asse rtion that a defendant admitted that “there may have been some problem with the t est pr ocedure” effectively disproves any alleg ation of concea lment. Th is Court does not agree. The test result was either correct or incorrect. “A problem”does not designate either a correct or an inc orre ct result, and the correctness or incorrectness was never ascertained and re ported 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 bey ond doubt that plaintiff can prove no state of fact s in suppor

t 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 judgme

nt, the determinative question of fact is whether the facts known to plaintiff a y ear before suit consti

tuted re asonable

notice to plaintiff that she had bee n injured by w rongfu l conduct of defe ndants. As a general rule, negligence cases are not amenable to summary judg ment procee dings unless, from all

the fac ts toget

her with t he infer ences f rom them, the fac ts and inf erence s are so c ertain and uncontroverted that reasonable minds must agre e. Keene v . Cracke r Barrel O ld Country Sto re , 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. Ge ne ra ll y, the issue of reasonable care and dilig ence in discovery of an inju

ry is a question of fact for the jury . Gosnell v. Ashland Chemical Company, Inc. , Tenn. App. 1984, 674 S.W.2d 737, 740.-6- 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 y ear prior to the filing of the

present suit. The judgmen

t of the Tr ial Court isrevers ed and va cated. T he cause is remanded to the Trial Cour

t for fur ther pro ceeding s. Costs of t his appea l are taxe d again st the def endants. 

### REVERSED, VACATED AND REMANDED.

___________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

__________________________ SAMUEL L . LEWIS, JUDGE

__________________________ BEN H. CANTRELL , JUDGE