A 2019 lawsuit filed against the company that performed an incorrect paternity test in 2001 can go forward, the Fort Worth Court of Appeals. The trial court had granted the company’s summary judgment on statute of limitations, collateral attack, and collateral estoppel grounds, but the court of appeals reversed on all fronts.

Teresa Maria Shield, Matthew Wilson, and Robert Heck v. Bio-Synthesis, Inc., DNA Testing Centre, Inc., and Rita Chen, Ph.D. (No. 02-21-00160-CV) arose from a paternity test conducted when in 2001 Heck, Wilson’s father, filed a suit affecting the parent-child relationship (SAPCR) to establish conservatorship of and child support for Wilson. The court ordered a paternity test, for which Shield (Wilson’s mother), Wilson, and Heck gave DNA samples. The results determined that Heck was not Wilson’s biological father. The court dismissed the SAPRC suit with prejudice based on the results. Fast forward to 2019, when one of Wilson’s relatives found a DNA match on Ancestry.com showing that the relative shared DNA with Heck’s family. Shield contacted Heck, and the three gave DNA for another test. This one established Heck as Wilson’s biological father. The three sued the lab and Chen, who certified the test, asserting DTPA violations, fraud, negligence, gross negligence, negligent misrepresentation, negligent hiring, supervision, and management, and breach of contract (Chen was never served, never answered, and never appeared). The defendants moved for summary judgment based on five grounds: limitations; collateral attack, collateral estoppel, a violation of the Family Code (with respect to the SAPCR suit); and the DTPA claim. The trial court granted summary judgment on all issues. The defendants appealed.

On appeal, plaintiffs argued that the discovery rule applied and that the trial court erred in granting summary judgment based on limitations. While the court of appeals found that limitations had expired for each of plaintiffs’ claims well before 2019, the court concluded that the discovery rule applied, thus deferring the accrual dates until the date plaintiffs received the results of the second paternity test in 2019. This case is particularly interesting for the court’s thoroughgoing analysis of the applicability of the discovery rule. First, the rule “defers the accrual date until the claimant discovers, or reasonably should have discovered, the facts giving rise to the cause of action” (citations omitted). It “applies to a cause of action if (1) the injury incurred is inherently undiscoverable, and (2) the evidence of the injury is objectively verifiable” (citations omitted). Whether an injury is “inherently undiscoverable” depends on whether “it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence” (citations omitted). The focus is thus not the plaintiff’s particular injury, but the nature and type of injury and “whether a person is likely to discover, through reasonable diligence, the type of injury sustained within the limitations period” (citations omitted).

The court of appeals determined that the injury—the inaccurate test—was both inherently undiscoverable and objectively verifiable. In a similar case, the court noted, SCOTX concluded that a “doctor’s malpractice in conducting the genetic screening was the type of injury that was inherently undiscoverable until the child’s [muscular dystrophy] symptoms manifested” (Nelson v. Krusen, 678 S.W.2d 918 (Tex. 1984)). Comparing the two cases, the court of appeals saw no difference between a genetic screening and DNA test in that a reasonable person was “unlikely to inquire about how the test was performed to discover potential injuries related to negligent or wrongful conduct in performing the test.” The defendants conceded that the injury was objectively verifiable, so the court did not analyze this prong of the test.

Having determined that the discovery rule applied, the court turned to whether the summary judgment evidence showed that plaintiffs discovered or reasonably should have discovered the injury within the limitations period. The court said no, observing that there was no evidence that Heck was the mother’s only sexual partner around the time of Wilson’s conception (which would have given rise to a suspicion about the test) or that there was any other reason to question the test. The mother did say in a deposition that she always wondered about the test, but one statement of “mere surmise, suspicion, or accusation.” As SCOTX has held, “Without more, subjective beliefs and opinions are not facts that in the exercise of reasonable diligence would lead to discovery of a wrongful act” (quoting Southwestern Energy Production Co. v. Berry-Helfand, 491 S.W.3d 699, 724 (Tex. 2016)).

The court of appeals likewise rejected the defendants’ argument that plaintiffs’ lawsuit constituted collateral attack on the 2001 SAPCR suit, which denied the mother child support benefits, or was collaterally estopped by the decision in this case. With respect to collateral attack, the court observed that the two lawsuits were distinct, one to determine custody and support, the other alleging misconduct by the defendants. Similarly, collateral estoppel, which refers to relitigating an issue already decided in a previous case, did not apply. Nothing in the SAPCR suit litigated facts related to the defendants’ alleged misconduct in performing the paternity test and nothing in the record indicated that the alleged misconduct was in any way implicated in that suit. A similar statutory claim based on a Family Code provision requiring a person to challenge a paternity finding only in an appeal of that issue likewise did not appeal, since plaintiffs’ suit did not challenge the SAPCR finding of paternity. The issue here was the mother’s actual damages in raising a child as a single parent, the child’s and father’s damages for loss of family companionship.

We wonder why the defendants did not argue this case as a health care liability claim under Chapter 74, CPRC, which does not contain a discovery rule. While such an argument likely would not have prevailed, it does raise an interesting question. In any event, this case demonstrates the high bar set by the “inherently undiscoverable” standard.

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